THE  LIBRARY 

OF 

THE  UNIVERSITY 
OF  CALIFORNIA 

LOS  ANGELES 

SCHOOL  OF  LAW 


FACULTY  LIBRARY 


REPORTS 


OF 


CASES 


ARGUED   AND    DETERMINED 


SUPREME  COURT  OF  PENNSYLVANIA. 


FREDERICK    WATTS, 


COUNSELLOR  AT  LAW. 


VOL.   I. 

MAY  1832  TO  JUNE  1833. 


PHILADELPHIA: 
JAMES  KAY,  JUN.  &  BROTHER,  122  CHESTNUT  STREET, 

PITTSBURGH:    JOHN    I.     KAY    &    CO. 
MDCCCXXXIV. 


% 

r 


Vfp 

45 


Entered,  according  to  the  act  of  congress,  in  the  year  1834,  by  JAMES  KAV,  Jen. 
AND  BROTHER,  in  the  clerk's  office  of  the  district  court  of  the  eastern  district  of 
Pennsylvania. 


Philadelphia . 

Printed  by  James  Kay,  Jun.  &  Co. 
Race  Street  above  4th. 


SUPREME  COURT  OF  PENNSYLVANIA. 


Hon.  JOHN  GIBSON,  Chief  Justice. 
Hon.  MOLTON  C.  ROGERS,  Justice. 
Hon.  CHARLES  HUSTON,  Justice. 
Hon.  JOHN  KENNEDY,  Justice. 
Hon.  JOHN  ROSS,  Justice. 
Hon.  THOMAS  SERGEANT,(a)  Justice. 

ELLIS  LEWIS,  Attorney-General. 
GEORGE  M.  DALLAS,(&)  Attorney-General. 


{a)  Appointed  in  the  room  of  Hon.  John  Ross,  deceased. 
{b)  In  the  room  of  Ellis  Lewis,  resigned. 


TABLE  OF   CASES. 


Adams  v.  Betz        .  ' . 

Adams  v.  M'llheny 

Albert,  Riddle  v.     . 

Allison,  Lyon  v. 

Arrison  v.  Commonwealth  . 

Atkinson,  Withers  v.    .  . 

Bachman's  Road     . 

Baldwin,  Commonwealth  v. 

Bank,  Ebright  v.     . 

Bank  v.  Rainey 

Bank,  Whitehill  v. 

Bank  v.  Gibson 

Barr,  Rush  v. 

Bart  ram  v.  M'Kee 

Beard  v.  Deitz 

Beatty,  Commonwealth  v. 

Beirer  v.  Bushfield 

Beltzhoover  v.  Commonwealth 

Berryhill,  Rees  v. 

Betz,  Adams  v. 

Blanden,  Coxe  v. 

Bolton  v.  Colder 

Boyd  v.  Boyd    . 

Brentlinger  v.  Hutchinson 

Brown  v.  Campbell 

Brown  v.  Webb 

Bull,  Jacobs  v. 

Bushfield,  Beirer  v. 

Campbell,  Brown  v. 


425    Campbell  v.  Galbreath 

53  Campbell  v.  Wilson 
121     Clark,  Mather  v. 
161    Colder,  Bolton  v.    . 

374    Commonwealth  v.  Arrison 
236    Commonwealth  v.  Baldwin 
Commonwealth  v.  Beatty    . 
400    Commonwealth,  Beltzhoover  v. 

54  Commonwealth  v.  Cook 
397    Commonwealth,  Crawford  v. 

26    Commonwealth  v.  Evans 
396    Commonwealth  v.  Lecky    . 
143    Commonwealth  v.  M'Allister 
110    Commonwealth  v.  Robinson 
39    Commonwealth  v.  Simonton    . 
309    Commissioners,  Stauffer  v. 
382    Cook,  Commonwealth  v. 
23    Coxe  v.  Blanden     . 
126    Coxe  v.  Post    . 
263    Crawford  v.  Commonwealth 
425    Culp  v.  Fisher 
533 

360    Dawson,  Owens  v. 
305    Deitz,  Beard  v. 

Dengler,  Kiehner  v. 
Dickey,  Reed  v. 
Duncan  v.  Duncan 
Dunham  v.  Kirnp  ,r 


46 

41 

411 

370 

23 


41 


Ebright  v.  Bank 

Evans,  Commonwealth  v. 


70 

503 
491 
360 
374 

54 
382 
126 
155 
480 
437 

66 
307 
158 
310 
300 
155 
533 
533 
480 
494 

149 
309 
424 
152 
322 
130 

397 
437 


VI 


TABLE  OF  CASES. 


Ferrcn,  Oliphant  v. 
Fisher  v.  Kcan 
Fisher  v.  Kean 
Fisher,  Gulp  v. 
Foster,  Huston  v. 
Franklin  v.  Wray 
Freeman,  Pennock  v.   . 
Fricker's  Appeal 
Fry,  Malson  v.  . 

Galbreath,  Campbell  v. 
Geddis  v.  Hawk 
Gibson,  Bank  v. 
Gordon  v.  Preston 
Graff  v.  Graybill 
Graybill,  Graff  v. 
Gray,  Longstreth  v. 

Hart  v.  Yunt    . 
Hauser,  Turner  v.  . 
Hawk,  Geddis  v. 
Hess's  Appeal 
Hoch,  Kerper  v. 
Hoff,  Marshall  v.     . 
Hoge  v.  Hoge  .        •    . 
Holliday,  Summerville  v. 
Huston  v.  Foster 
Hutchinson,  Brentlinger  v. 

Immell,  Stoever  v.  . 
Jacobs  v.  Bull  . 

Kean,  Fisher  v. 
Kean,  Fisher  v. 
Keim,  Wetherill  v. 
Kerper  v.  Hoch 
Kiehner  v.  Dengler 
Kinnear,  Dunham  v. 
Kutz,  Ruth  v.    . 


57    Landis,  Peifer  v. 

392 

259    Lecky,  Commonwealth  v. 

66 

278    Light  v.  Light 

263 

494    Longenecker  v.  Zeigler 

252 

477    Longenecker  v.  Zeigler 

302 

129    Longstreth  v.  Gray 

60 

401    Long  v.  Long 

265 

393    Luce,  Snively  v. 

69 

433    Lyon  v.  Allison 

161 

Lyon  v.  Marclay 

271 

70    Lytle,  Mehaffy  v.     . 

314 

280 

143     Malson  v.  Fry 

433 

385    Marclay,  Lyon  v.     . 

271 

428    Marshall  v.  Hoff     . 

440 

428    Mather  v.  Clark 

491 

60    Mehaffy  v.  Lytle     . 

314 

Mercer  y.  Watson        .          330,  344 

253    Methodist  Church  v.  Remington 

218 

420    Morris  v.  Phaler 

389 

280    M'Allister,  Commonwealth  v. 

307 

255    M'llheny,  Adams  v. 

53 

9    M'Kee,  Bartram  v. 

39 

440 

163    Nutz  v.  Reutter 

229 

507 

477    Oliphant  v.  Ferren 

57 

46    Owens  v.  Dawson 

149 

258    Peifer  v.  Landis      . 

392 

Pennock  v.  Freeman    . 

401 

370    Phaler,  Morris  v.     . 

389 

Post,  Coxe  v.    . 

533 

259    Preston,  Gordon  v. 

385 

278 

320     Rainey,  Bank  v. 

26 

9     Reed  v.  Dickey 

152 

424     Rees  v.  Berryhill 

263 

130    Remington,  Methodist  Church  v. 

218 

489     Reutter,  Nutz  v. 

229 

TABLE  OF  CASES. 


Riddle  v.  Albert      . 
Robinson,  Commonwealth  v. 
Rohrer  v.  Stehman 
Ross  v.  Soles    . 
Rush  v.  Barr 
Ruth  v.  Kutz    . 

Shepherd  v.  Watson 
Silvergood  v.  Storrick  . 
Simonton,  Commonwealth  v. 
Snively  v.  Luce 
Soles,  Ross  v.  . 
Sommer  v.  Sommer 
Stauffer  v.  Commissioners 
Stehman,  Rohrer  v. 
Stehman  v.  Stehman    . 
Stewart  v.  Stocker 
Stocker,  Stewart  v. 
Stoever  v.  Immell   . 
Storrick,  Silvergood  v. 


121    Summerville  v.  Holliday 

158 

442    Turner  v.  Hauser 
43 

110    Watson,  Mercer  v. 

489    Watson,  Shepherd  v.   . 
Webb,  Brown  v. 
WetLerill  v.  Keim 
Whitehill  v.  Bank 
White  v.  Willard 
Willard,  White.v.  . 
Wilson,  Campbell  v.     . 
Withers  v.  Atkinson 
Wray,  Franklin  v. 


35 
532 
311 

69 

43 
303 
300 
442 

466    Yunt,  Hart  v. 
135 

135  Zeigler,  Longenecker  v. 
258  Zeigler,  Longenecker  v. 
532 


VH 
507 

.      420 

330,344 

35 

411 

.      320 

396 

42 

42 

.      503 

236 

.      129 

253 

.      252 
302 


CASES 


THE  SUPREME  COURT 


PENNSYLVANIA. 


LANCASTER  DISTRICT,  MAY  TERM  1832. 


Kerper  against  Hoch. 

The  fourth  section  of  the  act  of  4th  April  1797,  which  provides  that  no  debts  of  a 
decedent,  unless  they  be  secured  by  mortgage,  judgment,  recognizance  or  other 
record,  shall  remain  a  lien  on  lands  and  tenements  longer  than  seven  years  after  the 
decease  of  such  debtor,  unless  suit  be  brought  within  seven  years,  or  a  statement  of 
the  debt  be  filed  in  the  prothonotary's  office,  is  a  statute  of  limitation  and  repose,  and 
protects  not  only  bona  fide  purchasers,  but  heirs  and  devisees  and  those  claiming 
under  them. 

Where  nearly  nine  years  after  the  death  of  intestate,  suit  was  brought  and  judg- 
ment had  against  his  estate,  it  was  held  that  the  person  so  obtaining  judgment  could 
not  come  in  upon  any  portion  of  the  parcels  of  land  taken  by  the  intestate's  son  under 
a  writ  of  partition  and  valuation  of  the  real  estate  of  his  father,  and  sold  by  virtue  of 
judgments  against  the  son,  neither  as  against  the  creditor  of  the  son,  nor  the  son 
himself. 

ERROR  to  the  court  of  common  pleas  of  Berks  county. 

IN  this  case,  Jacob  Gosler,  whose  father  died  intestate,  had  taken 
certain  parts  of  the  real  estate  of  the  intestate,  Nos.  1,  4  and  6, 
according  to  a  partition  and  valuation  which  had  been  made  of  it, 
under  a  writ  issued  for  that  purpose  out  of  the  orphan's  court  of 
Berks  county;  and  had  entered  into  recognizance,  to  pay  to  the 
widow  of  the  deceased  the  interest  annually  upon  one  third  of  the 
valuation  money  during  her  life,  and  to  pay  to  the  other  children, 
four  in  number,  their  respective  portions  of  two  thirds  of  the  valu- 
ation, in  one  year,  with  interest ;  and  their  proportion  of  the  re- 


778530 


10  SUPREME  COURT  [Lancaster, 

[Kerper  v.  Hoch.] 

maining  third  upon  the  death  of  the  widow.  He  also,  at  the  same 
time,  gave  his  bonds  to  them  for  the  payment  of  the  first  two 
thirds,  which  were  to  be  paid  with  interest  in  one  year.  The 
father  died  on  the  24th  of  January  1816.  The  lands  taken  by 
Jacob  were  decreed  to  him  by  the  orphan's  court  on  the  7th  day  of 
January  1817 ;  and  on  the  10th  of  the  same  month,  he  entered  into 
the  recognizance  and  gave  his  bonds. 

A  suit  was  brought  against  Jacob,  upon  his  recognizance,  in  the 
court  of  common  pleas  of  Berks  county,  to  August  term  1822;  and 
on  the  12th  of  August  1822,  judgment  was  obtained  against  him,  in 
favour  of  the  other  children  and  heirs  of  his  father,  for  the  balance 
unpaid  to  them  of  their  respective  portions  of  the  first  two  thirds  of 
the  valuation  money.  On  the  25th  of  March  1823,  Jacob  had  paid 
off  all  the  bonds  given,  with  the  exception  of  the  one  which  he  had 
given  to  his  brother  John;  upon  which  there  remained  a  balance 
due  of  about  650  dollars,  which  John  on  that  day,  for  a  valuable 
consideration,  assigned  to  Joseph  Hoch,  the  defendant  in  error. 

At  November  term  1820  of  the  court  of  common  pleas  of  Berks 
county,  Jacob  Gossler  confessed  a  judgment  to  John  V.  Epler,  for  a 
penalty  of  2000  dollars,  to  secure  a  debt  which  he  owed  to  him ; 
and  on  the  llth  of  November  1822,  in  the  same  court,  Peter  Roder- 
mel,  another  creditor  of  Jacob  Gossler,  obtained  a  judgment  against 
him  for  546  dollars  and  10  cents,  upon  which  an  alias  fieri  facias  was 
issued  to  April  term  1824,  and  the  parts  Nos.  1  and  6  of  the  estate, 
late  of  the  father  of  Jacob  Gossler,  which  had  been  decreed  to  Jacob 
by  the  orphan's  court,  were  levied  on  as  the  estate  of  Jacob,  and  con- 
demned ;  and  under  a  writ  of  venditioni  exponas,  issued  to  August 
term  1824,  both  parts  were  sold  to  Elizabeth  Gossler,  the  widow; 
No.  1  at  681  dollars,  and  No.  6  at  6  dollars,  subject  to  her  annuity. 
The  money  arising  from  these  sales  was  paid  by  her  to  Daniel  Ker- 
per,  the  sheriff  and  plaintiff  in  error,  who  still  holds  it  to  pay  Conrad 
Shep,  a  creditor  of  the  deceased. 

In  the  common  pleas  of  Berks  county,  to  November  term  1824,  a 
suit  was  brought  against  the  administrators  of  the  father  of  Jacob 
Gossler,  upon  a  bond  given  by  him  to  Conrad  Sliep,  dated  the  27th 
day  of  May  1813,  in  the  sum  of  200  pounds,  conditioned  for  the  pay- 
ment of  100  pounds  three  years  after  its  date,  and  on  the  8th  of 
November  1824,  judgment  was  rendered  in  favour  of  Conrad  Shep, 
for  the  amount  of  the  bond. 

Upon  this  statement  of  facts,  contained  in  a  case  stated,  and  agreed 
to  be  considered  in  the  nature  of  a  special  verdict,  the  court  below 
rendered  a  judgment  in  favour  of  Joseph  Hoch,  who  was  the  plaintiff 
there,  against  the  plaintiff  in  error. 

The  following  errors  were  assigned. 

1.  By  acts  of  intestacy  before  the  4th  of  April  1797,  the  debts  of 
testators  and  intestates  were  charges  on  their  real  estates  indefinitely. 

2.  The  change  made  by  the  act  of  the  4th  of  April  1797,  was  in 
favour  of  bonajide  purchasers  only,  and  does  not  embrace  creditors. 


OF  PENNSYLVANIA.  11 

[Kerper  v.  Hoch.] 

3.  Jacob  Gossler,  under  whom  the  plaintiff  in  error  claims  for  the 
use  of  Conrad  Shep,  took  the  land  in  question  as  heir,  and  not  as 
purchaser,  and  as  he  held  it  under  the  charge  and  liable  to  the  debts 
of  his  father,  the  plaintiff  claims  under  said  Gossler  and  stands  in 
his  shoes. 

Hopkins,  for  the  plaintiff  in  error. 

Creditors  have  a  lien  on  the  real  estate  of  a  decedent,  against  his 
heirs  or  devisees.  In  Graff  v.  Smith's  Administrators,  1  Dall.  482, 
a  creditor  took  the  real  estate  out  of  the  hands  of  the  alienee  of  the 
heir.  Jacob  Gossler  is  a  volunteer,  whose  claim  to  the  land  is  sub- 
ject to  the  intestate's  just  debts.  His  recognizance  was  to  pay  heirs, 
in  whose  hands  this  land  was  liable  for  the  debts,  and  this  condition 
of  the  estate  which  existed  at  the  time  of  the  appraisement,  continued 
afterwards  when  in  Jacob's  possession.  For  it  cannot  be,  that  mere 
volunteers,  by  hurrying  through  a  partition  and  valuation  of  an  in- 
testate's estate,  can  affect  injuriously  the  rights  of  the  creditors  of  the 
estate  :  and  Jacob,  who  took  the  land  at  the  valuation,  had  no  other 
nor  higher  character  in  respect  to  the  shares  of  his  brothers  and  sis- 
ters than  they  had,  but  as  to  these  shares  is  a  mere  volunteer. 
Judgment,  therefore,  against  Jacob  Gossler,  should  not  be  paid  out 
of  the  assets  of  his  father's  estate,  but  as  subordinate  to  the  claims 
against  the  estate.  The  act  of  4th  April  1797,  relates  to  bona  fide 
purchasers,  and  to  them  alone  ;  persons  claiming  under  heirs  or  devi- 
sees are  not  entitled  to  the  benefit  of  it.  The  assignee  of  a  chose  in 
action  stands  in  the  place  of  the  assignor.  So  Hoch  stands  in  the  sit- 
uation of  John  Gossler,  of  whose  state  and  condition  he  had  full 
notice  by  the  recognizance.  Besides,  the  statute  is  meant  to  protect 
the  bona  fide  purchasers  of  real  estate,  not  the  assignees  of  choses  in 
action.  There  is  no  limitation  as  respects  the  proceeds  of  real  estate  : 
real  estate  alone  is  mentioned.  Itcannot  beendured,  that  heirs  should 
enjoy  the  estates  of  their  ancestors  clear  of  the  incumbrance  of  their 
debts  :  their  rights  must  be  subject  to  those  of  creditors.  The  judg- 
ment creditors  of  Jacob  Gossler  must  claim,  subject  to  the  creditors 
of  his  father's  estate,  because  their  liens  are  upon  the  interest  of  the 
son  alone,  and  the  act  of  assembly  protects  purchasers  only,  and  not 
judgment  creditors.  If  we  find  the  fund  in  the  hands  of  children,  we 
should  be  entitled  to  be  paid.  So  if  claimed  by  a  transfer  of  their 
right  to  the  money.  Independent  of  the  act  of  4th  April  1797,  the 
lien  of  a  debt  against  the  estate  of  a  decedent,  is  indefinite  in  dura- 
tion ;  and  no  change  in  regard  to  this  case  is  made  by  it.  In  Bruch 
v.  Lantz,  2  Rawle  392,  it  was  held,  that  an  executor  who  buys  under 
a  power  to  sell,  at  his  own  sale,  was  not  protected  by  the  act  of  1797. 

Baird,  for  the  defendant  in  error. 

An  heir  taking  property  at  the  appraisement,  and  paying  the  pur- 
parts  of  the  other  heirs,  is  a  purchaser  of  such  real  estate.  6  Serg. 
fy  Rawle  257;  8  JSerg.  fy  Rawle  167,  181.  Here  Jacob  Gossler 
bought  five-sixths  of  the  property,  and  for  one-sixth  only  paid  nothing. 


1*  SUPREME  COURT  [Lancaster, 

[Kerper  v.  Hoch.] 

The  sheriff  sold  bis  estate,  and  not  that  of  his  father.  If  a  sale  had 
been  made  under  an  execution  against  the  father's  administrator,  not 
more  than  one-sixth  could  have  passed  ;  and  even  as  to  that  sixth, 
the  debts  of  the  intestate  could  not  be  thrown  on  it  exclusively. 

The  act  of  assembly  protects  not  only  purchasers,  but  also  judg- 
ment creditors  of  the  heir  who  takes  the  property  at  the  appraisement. 
The  act  is  an  act  of  limitation,  and  is  general  in  its  terms.  Will  it 
be  contended,  that  from  the  words  of  the  preamble,  none  but  bona 
fide  purchasers  are  protected  1  The  words  ate  similar  to  the  preamble 
to  the  law,  limiting  the  lien  of  judgment  to  five  years,  yet  the  su- 
preme court  decided  that  judgment  creditors  were  within  the  purview 
of  the  act,  as  well  as  purchasers.  Sank  of  North  America  v.  Fitz- 
simmons,  3  B'mn.  342  ;  1 1  Serg.  fy  Rawle  94,  97.  The  case  ofBruch 
v.  Lantz,  2  Rawle  392,  does  not  stand  in  the  way  of  this  construction. 
The  point  there  decided  was,  that  the  sale  by  an  executor  to  himself 
under  a  power  in  the  will,  did  not  constitute  him  a  bona  fide  purcha- 
ser. But  if  it  were  against  equity  in  Jacob  Gossler  to  insist  on  the 
limitation,  the  conscience  of  Joseph  Hoch  is  not  affected,  and  he  may 
insist  on  it.  By  becoming  a  purchaser  of  one  of  the  heirs'  shares, 
Jacob  Hoch  comes  within  the  purview  and  protection  of  the  act. 
Nothing  but  record  liens  bind  property.  7  Serg.  fy  Rawle  64, 80.  An 
equitable  lien  does  not  come  in.  Ibid.  The  policy  of  the  law  is  to 
enforce  strictly  these  limitations.  Ibid.  74.  There  is  a  statute  in 
Massachusetts  limiting  suits  against  executors  and  administrators  to 
four  years  from  the  death  of  testator  or  intestate.  Courts  say,  that 
thisstatute  is  for  the  benefit  of  the  estates,  and  those  interested  in  them. 
A  promise  there  by  executor  after  four  years,  will  not  take  the  case  out 
of  the  statute.  13  Mass.  201.  Nor  can  the  executor  waive  the 
bar.  16  Mass.  429.  Even  where  he  had  suffered  judgment  to 
go  by  default,  his  sureties  were  allowed  to  plead  the  statute.  15 
Mass.  6.  So  where  executor  himself  paid  the  debts,  he  cannot  after 
four  years  obtain  an  order  of  sale,  unless  estate  remain  in  statu  quo 
without  partition.  15  Mass.  58.  Reason  of  this  strictness.  Ibid. 
143.  It  is  the  policy  of  the  law,  that  estates  of  intestates  should  be 
settled.  Heirs  are  not  prohibited  from  applying  immediately  after 
the  death  of  intestate,  for  a  partition  and  appraisement.  It  is  true, 
they  are  not  protected  from  the  debts  of  the  decedent  until  after  the 
lapse  of  seven  years ;  but  is  it  not  right  that  they  should  be  pro- 
tected after  that  period  ? 

Hopkins,  in  reply. 

It  would  lead  to  great  difficulty  to  give  to  purchasers  from  the 
heirs  the  protection  of  the  statute.  The  husband,  in  the  case  in 
6. Serg.  4"  Rawle  267,  is  a  purchaser,  but  does  he  purchase  discharged 
from  liens  1  In  the  orphan's  court  frequent  distributions  are  made  of 
intestates'  estates,  and  in  each  stage  the  debts  of  decedent  are 
paid.  Unless  this  case  prevail,  the  legislature  must  interfere  and  pre- 
vent the  estate  being  taken  within  a  certain  time.  The  law  exists 


May  1832.]  OF  PENNSYLVANIA.  13 

[Kerper  v.  Hoch.] 

against  the  entire  estate,  not  against  the  one  sixth  :  each  heir  is 
bound  to  contribute  towards  payment ;  and  a  creditor  of  the  estate 
is  not  bound  by  the  transactions  of  the  heirs  among  themselves.  We 
have  no  statute  like  the  one  in  Massachusetts,  and  the  construction 
given  to  it  can  have  no  influence  in  the  act  under  consideration. 
The  case  in  Serg.  fy  Rawle  relates  to  parol  liens :  ours  is  so  inter- 
woven with  the  title  that  it  cannot  be  separated. 

The  opinion  of  the  Court  was  delivered  by 

KENNEDY,  J.— Three  errors  have  been  assigned.  There  is,  how- 
ever, butonequestion involved  in  the  case,  and  upon  that  the  cause  has 
been  argued  by  the  counsel.  Does  the  fourth  section  of  the  act  of  4th 
April  1797,  entitled  an  act  supplementary  to  the  act  directing  the  de- 
scentof  intestate's  real  estate,  &c.,  discharge  the  lands  of  deceased  per- 
sons from  liability  to  the  payment  of  their  debts  after  a  lapse  of  seven 
years  from  the  death  of  the  debtors,  in  case  no  suit  is  commenced,  or 
act  done  as  therein  required,  in  order  to  continue  such  debts  a  lien 
upon  the  lands  1  A  proper  solution  of  this  question  will  decide  this 
case. 

In  Pennsylvania,  lands  are  liable  as  goods  and  chattels  to  be  taken 
in  execution  and  sold  for  the  debts  of  the  owner ;  and  for  this  reason 
it  must  necessarily  be,  that  the  holders  and  apparent  owners  of  them 
will  and  do  obtain  credit,  and  are  enabled  to  create  debts  upon  the 
faith  of  their  being  considered  the  owners;  and  immediately  upon 
the  death  of  a  debtor  his  debts  become  a  lien  upon  all  his  real  estate  : 
but  the  consideration  just  mentioned,  that  those  who  succeed  to  the 
possession  and  ownership  of  his  lands  will  thereby  gain  a  credit  in 
the  world,  that  without  them  they  could  not  obtain,  rendered  it  indis- 
pensably necessary  to  place  this  lien  under  certain  regulations  and 
limitations.  Latent  liens  are  not  favoured,  and  have  ever  been  dis- 
couraged with  us,  where  lands  have  frequently  changed  their  owners  in 
almost  as  rapid  succession  as  if  they  had  been  goods  and  chattels,  or 
merchandise.  This  doctrine,  and  the  policy  of  it,  are  ve^  clearly  illus- 
trated, and  most  powerfully  enforced  in  the  case  of  Kauffelt  and  Bower, 
in  7  Serg.  fy  Rawle  64.  Great  injustice  as  well  as  inconvenience 
must  ever  result  from  secret  liens  being  permitted  to  continue  without 
limitation  under  any  circumstances  whatever.  If  we  restrict  and  con- 
fine the  operation  of  the  fourth  section  of  the  act  of  assembly  of  the  4th 
of  April  1797,  to  bona  fide  purchasers  for  a  valuable  consideration  of 
the  lands  of  the  deceased  debtors,  so  as  to  protect  them  alone  after  the 
seven  years,  and  not  the  heirs  or  devisees  of  the  deceased,  the  con- 
sequences will  be,  that  the  creditors  of  heirs  and  devisees  to  the  end 
of  the  chain  after  the  seven  years  have  gone  by,  and  who  may  fairly 
be  presumed  to  have  given  the  credits  upon  the  belief  that  the  heirs 
and  devisees  who  became  their  debtors  were  the  absolute  owners  of  the 
lands  clear  of  incumbrances,  as  nothing  wasput  upon  record  to  apprise 
them  of  the  contrary,  will  be  defeated  most  unjustly  of  their  claims, 
without  the  slightest  degree  of  neglect  on  their  part,  or  even  any 


14  SUPREME  COURT  [Lancaster, 

[Kerper  v.  Hoch.] 

thing  that  could  be  called  imprudence.  If  seven  years  is  not  to  be  a 
bar  to  a  proceeding  against  the  lands  of  deceased  debtors,  to  obtain 
payment  of  the  debts,  where  nothing  was  done  within  that  period  to 
continue  the  lien  as  required  by  the  act ;  when  will  it  be  prudent  to 
trust  the  heir  or  devisee,  on  account  of  his  being  the  owner  and  pos- 
sessor of  lands  by  inheritance  or  last  will  1  Yet,  under  such  circum- 
stances of  ownership,  it  is  impossible  to  deny  him  credit ;  he  will 
obtain  it  on  account  of  the  lands  which  he  so  holds.  He  may  not 
know  of  the  incumbrances  himself,  and  therefore  feels  conscious  that 
he  is  entitled  to  claim  all  the  credit  he  asks.  Have  not  he  and  they 
with  whom  he  dealt  good  reason  to  believe  that  all  the  debts  of  the 
ancestor  or  testator  were  paid,  as  there  had  been  no  suits  commenced 
or  statements  of  them  filed  in  the  prothonotary's  office  within  the 
seven  years.  It,  however,  turns  out  afterwards,  that  there  are  bond- 
debts  in  amount  equal  to  the  value  of  the  landsstill  in  existence,  which 
remain  unpaid,  without  any  thing  having  been  placed  upon  record 
as  directed,  to  indicate  their  existence ;  and  the  heir  has,  in  the 
meantime  contracted  debts  equal  in  amount  to  the  value  of  the  lands, 
and  then  dies  leaving  them  unpaid.  They  become,  immediately 
upon  his  death,  liens  upon  the  lands.  Now  here  are  two  sets  of 
creditors,  one  of  which  must  inevitably  lose  their  debts;  and  which, 
upon  principles  of  reason  and  common  justice,  ought  it  to  be  "?  If  the 
question  were  to  be  decided  upon  this  ground,  those  who  are  most 
free  from  blame  ought  to  be  preferred,  and  the  law  always  does  attach 
at  least  some  degree  of  blame  to  negligence  ;  and  here  I  think  it  will 
be  admitted,  that  negligence  may  well  be  imputed  to  the  creditors  of 
the  ancestor,  and  that  they  have  no  right,  therefore,  to  claim  a  pre- 
ference. The  maxim  of  law  on  this  subject  is,  vigilantibus  et  non 
dormientibus  leges  subserviunt.  They  withheld  from  the  public  the 
means  prescribed  by  the  act  for  giving  notice  of  their  claims.  This 
was  gross  negligence  upon  their  part.  They  have  thus  indirectly  en- 
couraged the  credits  which  were  given  to  the  heir  of  their  debtor, 
and  ought  not,  therefore,  to  be  permitted  to  takeaway  from  those  cred- 
itors the  only  fund  out  of  which  they  can  be  paid.  If  they  had  placed 
their  claims  against,  the  ancestor  upon  record  in  the  manner  required 
by  the  act  of  assembly,  within  the  seven  years,  it  is  fair  to  presume, 
that  the  credit  which  was  extended  to  the  heir  would  not  have  been 
given.  It  is  not  material  here,  that  no  fraud  was  intended  by  them 
in  their  neglect  to  bring  forward  their  claims  as  required  by  law  ;  for 
the  rule  is,  that  if  one  of  two  innocent  persons  must  suffer  a  loss  of 
which  one  of  them  has  been  the  occasion,  it  shall  fall  upon  him  who 
was  the  cause  of  it. 

With  respect  to  the  fourth  section  of  this  act  of  the  4th  of  April 
1797,  it  appears  to  me  to  be,  to  all  intents  and  purposes,  a  statute  of 
limitation  and  repose.  In  the  case  of  the  Bank  of  North  America  v. 
Fitzimons,  3  Binn.  359,  360,  it  is  very  properly  spoken  of  as  a  part  of 
a  system  which  the  legislature  of  the  state  have,  by  a  series  of  acts, 
introduced  and  gradually  matured  against  long  continued  liens  on 


May  1832.]  OF  PENNSYLVANIA.  15 

[Kerper  v.  Hoch.] 

real  estates,  from  which  great  inconveniences  had  been  encountered 
and  many  evils  had  arisen.  It  is  a  mistake  to  suppose  that  a  regula- 
tion which  limits  liens,  especially  secret  liens,  which  exist  only  in  the 
knowledge  or  pockets  of  certain  individuals,  upon  lands,  does  or  can 
impair  the  claims,  or  injure  in  the  main  the  rights  of  creditors;  so  far 
from  producing  such  an  effect,  it  has  been  found,  by  experience,  to 
afford  securityand  protection.  Under  this  impression,  as  the  chief  jus- 
tice of  this  court  has  said,  in  the  case  of  Kauffelt  v.  Bower,  7  Serg.  fy 
Rawle  78,  "  the  legislature  has  uniformly  discouraged  every  other  lien 
orincumbrance  than  those  which  arise  from  transactions  which  appear 
of  record,  and  which  therefore  can  prejudice  no  one,  who  uses  pro- 
per diligence  to  ascertain  the  state  of  the  facts  :  and  even  when  liens 
are  permitted,  it  has  been  thought  that  the  state  of  property,  as  well 
as  the  habits  of  the  people,  required  them  to  be  laid  under  severe  limi- 
tations and  restrictions.  Thus,  by  act  of  assembly,  a  judgment  con- 
tinues a  lien  but  for  five  years,  unless  within  that  period  it  be  revived 
by  scire  facias."  And  I  will  add,  that  of  this  we  have  a  most  full 
confirmation  by  an  act  passed  since  that,  in  1827,  limiting  still  more 
strictly  the  liens  of  judgments.  If  the  continuation  of  those  liens 
without  limitation,  which  grow  out  of  matters  of  record,  and  are 
open  to  the  inspection  of  every  body,  and  can  therefore  be  readily 
known  by  all,  be  deemed  so  serious  an  evil  as  to  require  the  most 
guarded  restrictions  imaginable,  how  much  greater  must  it  be  in  the 
case  of  secret  liens.  As  long  as  they  are  kept  from  being  placed 
upon  record,  there  are  no  means  furnished  of  ascertaining  their  ex- 
istence or  amount.  Hence  no  man  can  tell  when  he  is  safe  from 
the  effect  of  them,  either  directly  or  indirectly.  If  those  who  claim 
to  have  such  debts  were  to  put  them  on  record,  as  required  by  the 
act  of  1797,  it  would  afford  an  opportunity  of  knowing  them  who 
claimed  to  have  such  debts  ;  so  that  every  one  interested  might  in- 
quire and  satisfy  himself,  and  after  that,  govern  himself  accordingly. 
But  is  it  not  criminal  in  those  who  pretend  to  have  those  claims,  to 
lie  by  without  suing,  or  otherwise  filing  in  the  prothonotary's  office 
a  statement  of  them,  where  they  are  not  payable  within  the  seven 
years;  in  order  to  continue  the  lien  and  give  notice  of  their  claims, 
to  attempt  after  that  period  has  expired  to  take  away  the  land  for  the 
payment  of  their  debts,  to  the  entire  exclusion  of  the  creditors  of  the 
heir  who  trusted  him  after  the  seven  years  had  passed,  upon  the  faith 
of  his  owning  the  land  clear  of  incumbrances1?  To  permit  or  sanction 
such  a  thing  would,  I  think,  be  a  direct  violation  of  the  act  of  1797, 
and  not  only  unjust,  but  culpable.  It  would  be  making  the  act  a 
snare,  to  catch  not  merely  the  unwary,  but  such  as  the  most  cau- 
tious and  vigilant  could  not  always  escape  from. 

It  has  been  contended  in  this  case,  that  the  words  of  the  preamble 
to  the  fourth  section  of  the  act  of  1797  show,  that  the  limitation, 
although  expressed  in  general  terms  in  the  enacting  part,  was  in- 
tended for  the  protecting  of  bona  fide  purchasers,  and  no  others. 
There  are  certainly  no  negative  words  in  this  preamble,  and  the  limi- 


16  SUPREME  COURT  [Laneatter, 

[Kerper  v.  Hoch  ] 

tation  in  the  body  being  general  and  positive  without  the  least 
qualification,  the  preamble,  even  if  it  were  in  its  terms  confined  to 
purchasers,  which  I  do  not  concede,  ought  not,  without  some  other 
aid,  to  restrain  and  limit  the  general  operation  of  the  enacting  clause. 
If  purchasers  were  the  only  persons  who  could  be  injured  by  such 
secret  liens  being  suffered  to  remain  without  limitation,  there  might 
be  some  reason  for  confining  the  enacting  clause  to  purchasers,  if 
they  were  the  only  objects  presented  in  the  preamble.  In  the  Bank 
of  North  America  v.  Fitzsimons,  the  same  argument  was  offered  to 
restrain  the  operation  of  the  general  terms  employed  in  the  enacting 
clauses  of  the  act  of  1798,  limiting  the  lien  of  judgments  to  five 
years,  unless  revived  by  scire  facias  within  that  period.  The  only 
mischief  recited  in  the  preamble  of  that  act  was,  the  risk  and  incon- 
venience that  were  produced  to  purchasers  of  real  estate  from  judg- 
ments remaining  a  lien  upon  it  for  an  indefinite  length  of  time  ;  the 
court  however  decided,  that  the  preamble  was  insufficient  to  contract 
the  enacting  clauses,  and  that  the  lien  of  judgments  should  cease  to 
exist  after  a  lapse  of  five  years,  unless  revived  within  that  time 
against  subsequent  judgment  creditors  as  well  as  purchasers. 

The  preamble  to  the  fourth  section  of  the  act  of  the  4th  of  April 
1797,  is  couched  in  the  following  words.  "  Whereas  inconveniences 
may  arise  from  the  debts  of  deceased  persons  remaining  a  lien  on 
their  lands  and  tenements,  an  indefinite  period  of  time  after  their 
decease;  whereby  bona  fide  purchasers  may  be  injured,  and  titles 
become  insecure"  It  must  be  observed,  that  it  is  not  the  titles  of  the 
purchasers  before  mentioned  that  is  here  spoken  of,  more  than  the 
titles  of  any  other  persons,  such  as  the  heirs  or  devisees  of  the  deceased 
debtors  themselves,  otherwise  the  words  "their  titles  become  insecure'* 
would  have  been  used.  These  two  clauses  are  not  necessarily  con- 
nected so  as  to  render  the  latter  inoperative  without  the  first ;  but 
may  be  considered  as  substantive  and  independent.  The  latter 
clause  may  be  considered  as  referring  to  the  insecurity  that  must 
attend  the  titles  of  the  heirs  or  devisees  of  the  deceased  debtors,  if 
the  liens  of  their  debts  were  suffered  to  continue  beyond  seven  years 
from  the  deaths  of  such  debtors,  unless  suits  were  commenced  for 
them  where  they  were  payable  within  that  time,  or  a  statement  of 
them  filed  in  the  office  of  the  prothonotary  of  the  county  where  the 
land  might  happen  to  lie,  within  the  seven  years  from  the  deaths  of 
the  debtors,  where  they  were  not  payable  within  that  time.  So  far 
as  the  generality  of  the  enacting  clause  of  the  section  may  be  calcu- 
lated to  strengthen  and  support  this  construction,  it  is  as  full  and 
ample  as  could  be  wished  for.  It  declares,  in  the  most  general  and 
positive  terms,  that  the  debts  of  no  deceased  persons  shall  remain  a 
lien  on  their  lands  longer  than  seven  years  from  their  deaths  respect- 
ively, unless  sued  for,  or  a  statement  filed  within  that  time  as  already 
mentioned.  Beside,  all  the  arguments  which  were  brought  to  bear 
in  the  case  of  the  Bank  of  North  America  v.  Fitzsimonsy  in  support 
of  giving  to  the  enacting  clause  a  construction  co-extensive  with 


May  1832.]  OF  PENNSYLVANIA.  17 

[Kerper  v.  Hoch.] 

the  generality  of  its  terms,  and  sufficiently  broad  to  embrace  all  the 
objects  set  forth  in  the  preamble  and  enacting  clauses  taken  together, 
come  with  double  force  here,  where  the  liens  intended  to  be  limited 
are  of  a  secret  nature,  not  appearing  upon  record  in  any  shape,  and 
therefore  of  a  much  more  dangerous  as  well  as  mischievous  cha- 
racter. 

Since  the  act  of  1798,  limiting  the  lien  of  judgments,  was  considered 
to  extend  to  subsequent  judgment  creditors  as  well  as  purchasers, 
although  purchasers  alone  were  pointed  out  in  the  preamble  as  its 
objects,  and  this  construction  has  since  been  expressly  confirmed 
and  approved  of  by  the  legislature,  I  think  that  we  ought  to  observe 
the  same  latitude  of  construction  of  the  fourth  section  of  the  act  of 
1797,  which,  in  the  preamble,  as  well  as  the  enacting  part,  has 
terms  sufficiently  general,  not  merely  to  admit  of,  but  to  demand  it, 
in  order  to  guard  against  evils  that  otherwise  would  arise,  of  a  more 
injurious  and  much  more  extensive  nature.     They  are  also  parts  of 
the  same  system  of  protection,  and  ought  to  receive  such  construction 
as  will  preserve  the  harmony  and  symmetry  of  it.     This  can  only 
be  done  by  giving,  after  the  expiration  of  the  seven  years,  a  prefer- 
ence to  the  creditors  of  the  heirs  or  devisees,  over  those  of  the 
ancestor  or  testator,  who  have  slept  and  done  nothing  during  that 
period  to  continue  the  lien  of  their  claims.     Now,  with  a  view  to 
apply  this  principle  to  the  case  before  us  and  under  our  consideration, 
let  us  for  a  moment  attend  to  the  relative  position  of  Shep,  the  credi- 
tor of  the  deceased  ancestor,  and  Hoch  and  other  creditors  of  Jacob 
the  heir.     The  creditors  of  Jacob  had  sued  him  and  obtained  judg- 
ments against  him  for  their  debts,  thereby  clearly  making  them  liens 
upon  the  land :  and  although  the  debt  of  Conrad  Shep,  the  creditor 
of  the  deceased,  became  payable  about  the  time  of  the  death  of  the 
deceased,  in  January  1816,  no  suit  was  commenced  for  it  until  No- 
vember term  1824,  a  space  of  nearly  nine,  instead  of  seven  years ; 
and  this  too  after  the  creditors  of  Jacob  had  all  obtained  their  judg- 
ments.   Thus  the  creditors  of  Jacob  had  liens  for  their  claims  respect- 
ively upon  the  land,  at  a  time  when  the  debt  of  the  creditor  of  the 
ancestor  had  ceased  to  be  a  lien.     If  the  lien  of  Shep,  the  creditor  of 
the  ancestor,  was  extinguished  by  the  operation  of  the  act  of  1797, 
upon  the  land,  his  obtaining  a  judgment  afterwards  could,  upon  no 
principle  that  I  can  conceive  of,  revive  it,  or  renew  to  him  in  any 
manner  a  right  which  he  had  lost  by  his  own  neglect.     While  things 
were  in  this  state,  Peter  Rodermel,  one  of  the  creditors  of  Jacob  the 
heir,  issued  a.  fieri  facias  upon  his  judgment,  by  virtue  of  which  the 
land  was  taken  in  execution,  condemned,  and  afterwards  sold  by  the 
sheriff,  upon  a  venditioni  exponas,  issued  for  that  purpose,  as  the  estate 
of  Jacob  the  heir,  and  the  purchase  money  paid  into  the  hands  of 
the  sheriff.     And  although  Shep  obtained  a  judgment  for  his  debt 
against  the  personal  representatives  of  the  deceased  ancestor,  he 
never  issued  an  execution  upon  it. 

It  is  admitted,  that  the  purchaser  at  the  sheriffs  sale  will  hold  the 


18  SUPREME  COURT  [Lancaster, 

[Kerper  v.  Hoch.] 

land  discharged  from  Shep's  judgment,  but  Shep  claims  to  be  paid  first 
out  of  the  money  arising  from  the  sale  which  is  in  the  hands  of  the 
sheriff.  Upon  the  same  principle,  that  it  is  admitted  that  the  pur- 
chaser at  sheriff's  sale  will  hold  the  land  discharged  from  the  debts 
of  the  deceased,  that  is,  as  a  bona  fide  purchaser  of  the  land,  which 
is  within  the  express  provision  of  the  act ;  it  must  also  be  admitted, 
that  Jacob,  the  son,  held  his  brother  and  sister's  shares  of  the  land, 
which  was  seven  eighths  of  the  whole,  discharged  from  the  same 
debts  after  the  seven  years  had  elapsed ;  for  it  cannot  be  gainsaid 
that  he  was  a  like  purchaser  of  at  least  their  portions  in  the  land. 
This  would  necessarily  limit  Shep's  claim,  if  not  excluded  altogether, 
to  be  paid  out  of  that  portion  of  the  land  which  it  may  be  said  that 
Jacob,  the  son,  held  by  descent,  and  not  by  purchase ;  to  wit,  one 
eighth  part  only.  But  the  land  was  levied  on  and  sold  at  the  suit 
of  the  creditor  of  Jacob,  the  son,  and  as  his  estate.  And  can  it  be 
Denied  that  he  was  the  owner  of  it?  Certainly  not.  The  money 
thus  made  from  the  sale  is  to  be  appropriated  to  the  discharge  of  the 
debts,  which  were  liens  upon  the  land  at  the  time  of  the  sale,  accord- 
ing to  their  seniority.  This  I  consider  to  be  a  well  settled  and 
established  rule,  without  any  exception,  unless  in  the  case  of  pur- 
chase money  due  to  the  commonwealth  for  the  land,  or  in  the  case 
of  mortgages  falling  within  the  provisions  of  the  act  of  1730.  If 
Shep,  then,  had  lost  his  lien  upon  the  land  for  the  payment  of  his 
debt  at  the  time  of  the  sale  by  the  sheriff,  I  cannot  imagine  any 
principle  known  to  the  law  upon  which  he  can  claim  it  out  of  the 
money ;  and  without  an  entire  disregard  of  the  express  terms  and 
provisions  of  the  act  of  1797,  it  must  be  considered,  that  his  lien 
upon  the  land  was  gone,  and  that  the  sheriff  cannot  withhold  the 
money  from  the  judgment  creditors  of  Jacob,  the  heir,  on  that 
account. 

This  would  be  sufficient  to  affirm  the  judgment  in  this  case,  with- 
out deciding  upon  the  effect  of  the  limitation  as  respects  the  titles  of 
the  heirs  and  devisees  to  the  lands  which  have  descended  and  passed 
to  them  from  the  deceased  debtors,  after  the  seven  years  have  run 
without  suits  being  commenced,  or  statements  of  the  debts  being 
filed  within  that  time,  in  conformity  to  the  act,  whether  such  heirs 
and  devisees  shall  hold  the  lands  discharged  from  the  debts,  where 
there  are  no  creditors  of  the  heirs  and  devisees  to  be  injured  by  the 
debts  of  the  ancestor  or  testator  being  paid  out  of  them.  Having 
protected  the  creditors  of  the  heirs  and  devisees,  I  am  not  only  will- 
ing, but  feel  myself  bound  by  the  provisions  of  the  act,  and  what 
has  been  most  indubitably  the  policy  of  the  state,  to  extend  the  ben- 
efit of  the  limitation  to  the  heirs  and  devisees,  in  order  to  make  them 
secure  in  their  titles.  If  such  be  not  the  true  construction,  a  state 
of  things  must  often  arise  that  the  legislature  intended  to  provide 
against,  and  which  would  have  required  their  direction,  if  it  had  not 
been  thought  at  the  time,  that  their  act  would  in  future  prevent  it. 

In  the  first  place  1  have  to  observe,  that  it  has  ever  been  the  policy 


May  1832.]  OF  PENNSYLVANIA.  19 

[Kerper  v.  Hoch.] 

of  the  state  to  encourage  as  much  as  possible  the  settlement  and  cul- 
tivation of  all  her  lands,  and  to  hold  out  every  inducement  that  could 
be  offered,  to  bring  about  rapidly  the  highest  state  of  improvement  in 
every  point  of  view  that  could  be  imagined,  not  merely  in  changing 
the  country  from  a  wilderness  into  fine  cultivated  farms,  and  to  put 
up  permanent  and  commodious  dwellings  and  other  buildings  upon 
them,  but  to  encourage  the  building  of  cities,  towns  and  villages,  as 
also  the  establishment  of  manufactories  in  all  favourable  situations, 
and  at  the  same  time  to  embark  herself  in  the  making  of  canals,  rail 
and  turnpike  roads  to  the  fullest  extent  of  her  resources.  But  we 
all  know,  that  unless  the  holders  of  lands  are  made  secure  in  their 
titles,  it  is  in  vain  that  all  other  inducements  are  held  forth  to  encour- 
age them  to  improve  them  for  almost  any  valuable  purpose  whatever. 
Partly  with  this  view  it  is,  that  twenty-one  years'  adverse  possession 
without  even  the  shadow  of  right  or  title,  will  give  a  good  title  to 
lands  by  the  policy  of  our  law,  to  one  who  acquired  his  possession  by 
an  outrageous  and  forcible  expulsion  of  the  true  owner,  even  where 
the  title  of  the  owner  was  upon  record,  and  the  ejector  presumed  to 
know  all  about  it.  How  much  more  reasonable  and  just  is  it  then, 
that  the  heir  or  devisee  of  land  who  has  succeeded  to  the  possession 
and  ownership  of  it  under  the  authority  and  sanction  of  law,  and  not 
in  forcible  violation  of  it,  and  who  is  in  no  wise  to  blame,  should  be 
protected  against  those  claims  which  have  slept  and  been  kept  secret 
for  the  space  of  seven  years,  that  he  may  not  only  enjoy  it  in  peace 
and  safety,  but  that  he  may  go  on  and  improve  it,  for  either  agri- 
cultural, manufacturing  or  trading  purposes,  and  thus  advance  the 
great  interests  of  the  state,  as  well  as  his  own  7 

As  it  respects  the  rights  and  the  security  of  the  creditors  of  the 
deceased,  I  would  ask,  is  not  seven  years  time  enough  in  all  reason 
for  them  to  prosecute  their  claims  by  suit,  if  payable  within  that 
time  ;  if  not,  is  it  not  sufficient  time  to  file  a  statement  in  conformity 
to  the  act  1  All  will  join,  I  think,  in  answering  in  the  affirmative. 
If  a  creditor  will  not  observe  the  course  pointed  out  by  the  act,  and 
thereby  loses  the  chance  of  recovering  his  debt,  he  has  no  reason  to 
complain  of  the  law  ;  the  fault,  if  any,  was  entirely  his  own. 

I  will  again  turn  for  a  moment  to  what  must  often  be  the  situation 
of  heirs  and  devisees,  if  protection  be  not  afforded  them  by  this  act 
Suppose  that  the  lands,  at  the  time  that  they  come  to  the  possession  of 
them,  were  of  little  value,  being  rough,  mountainous,  unimproved 
lands,  and  have  been  made  highly  valuable  by  them  in  the  construc- 
tion of  works,  and  extensive  and  costly  buildings  for  the  manufactur- 
ing of  iron  ;  are  they  to  be  made  liable  in  this  highly  improved  state, 
when  the  seven  years  have  elapsed  without  any  thing  being  done  by 
the  creditors,  as  required  by  the  act,  to  secure  the  payment  of  their 
debts  1  Surely  not.  But  if  it  be  said,  that  the  lands  may  be  taken  i  n 
execution  and  sold,  and  that  the  heirs  or  devisees  shall  be  first  paid 
out  of  the  money  arising  from  the  sale  made  by  the  sheriff :  But  I 
ask,  how  is  the  value  of  the  improvements  to  be  ascertained  ;  and 


20  SUPREME  COURT  [Lmeaster, 

[Kerper  v.  Hoch.] 

when  ;  before  or  after  the  sale.  If  before,  by  what  authority ;  and 
where  has  the  law  pointed  out  a  course  to  be  pursued  to  effect  this, 
that  shall  be  binding  on  all  concerned  1  If  after  the  sale,  then  I  have 
no  hesitation  in  declaring,  that  the  property  and  the  rights  of  the 
heirs  or  devisees  must  be  most  wantonly  sacrificed  in  many  instances 
without  producing  any  thing  for  the  creditors  of  the  deceased  ;  be- 
cause, in  nine  cases  out  of  ten,  of  such  land  so  improved  being  sold 
by  the  sheriff  for  cash  in  hand,  as  it  must  be — it  would  not  bring  near, 
perhaps  not  one  half  of  the  value  of  the  improvements,  and  hence  the 
result  must  be  loss  and  ruin  to  all  concerned.  It  may,  therefore,  be 
fairly  inferred,  that  the  legislature  intended,  by  the  act,  to  protect 
heirs  and  devisees,  as  well  as  bona  fide  purchasers,  otherwise  they 
would  have  made  some  provision  to  obviate  the  difficulties  and  to 
prevent  the  sacrifices  alluded  to. 

Again,  if  heirs  and  devisees  be  not  considered  as  coming  under  the 
protection  of  the  act,  some  of  the  inevitable  consequences  will  be,  that 
the  elder  branches  of  them,  and  those  of  full  age,  will  sell  out  before, 
or  immediately  after  the  expiration  of  seven  years,  and  leave  the 
younger  branches  who  are  minors,  helpless  and  incapable  of  either 
selling,  or  maintaining  themselves,  to  be  stripped  of  all  that  has  de- 
scended or  been  given  to  them,  by  its  being  taken  from  them  to  pay  the 
debts  of  the  deceased,  which  have  made  their  appearance  after  that 
the  seven  years  have  run.  Thus  the  whole  burthen  of  paying  these 
debts  is  thrown  upon  the  estates  of  helpless  minors,  while  those,  possi- 
bly of  less  merit,  and  generally  more  able  to  bear  it,  go  clear.  For  I 
consider  it  settled  in  this  state,  that  heirs  or  devisees  who  have  sold  and 
parted  with  the  real  estate  or  lands  which  come  to  them  by  descent 
or  devise,  and  who  of  course  have  nothing  of  the  deceased's  estate 
remaining  specifically  in  their  hands  or  possession,  cannot  be  sued 
for  the  debts  of  the  deceased  by  his  creditors.  They  must  pursue 
the  property  :  but  if,  that  being  in  the  hands  of  bona  fide  purchasers, 
it  is  discharged  from  their  claims  by  the  provisions  of  the  act, 
I  hold,  that  the  heirs  or  devisees  are  discharged  from  all  responsi- 
bility likewise,  and  that  they  will  not  be  bound  to  make  contri- 
bution to  their  co-heirs  or  devisees  whose  interests  in  the  estate  were 
taken  and  sold  after  the  expiration  of  the  seven  years,  and  after  the 
interests  of  those  who  had  sold  out  were  discharged  by  the  operation 
of  the  act.  They  no  longer  stand  in  cequali  jure.  The  debts  were  no 
longer  a  lien  or  burthen  upon  their  rights  or  interests,  and  the  estates 
of  the  minors  were  not  taken  to  discharge  them  or  their  estates  from 
claims  that  had  an  existence  against  either.  Can  it  then  be  believed 
that  the  legislature  intended  to  place  minors  in  a  worse  situation,  in 
respect  to  their  patrimony,  than  those  of  full  age  *?  I  think  not.  It 
would  also  have  a  tendency  to  deprive  heirs  and  devisees  of  the  full 
benefits  and  value  of  the  estate,  because,  without  limitation  to  pro- 
tect them  in  the  enjoyment  of  it,  they  would  have  no  security  for  it 
that  they  could  rely  on  with  confidence,  and  would  therefore  seek 
the  earliest  opportunity  of  parting  with  it,  and  often  do  it  at  a  great 


May  1832.]  OF  PENNSYLVANIA.  21 

[Kerper  v.  Hoch.j 

sacrifice  rather  than  run  the  risk  of  losing  it  altogether,  and  their 
improvements  along  with  it,  if  they  have  been  so  imprudent  as  to 
make  any. 

The  case  of  Bruch  v.  Lantz,  2  Rawle  392,  has  been  relied  upon  as 
an  authority  by  the  counsel  in  favour  of  the  plaintiff  in  this  case. 
The  decision  in  that  case  was  not  concurred  in  by  all  the  members 
of  the  court,  and  was  connected  with  some  circumstances  of  fraud, 
upon  which  some  of  the  members  thought  the  cause  turned  pretty 
much.  I  have  examined  the  report  of  it,  and  must  confess,  that  the 
principle  decided  in  it  does  appear  to  me  to  support  very  strongly  the 
side  of  the  plaintiff  in  error  here,  and  under  that  impression  I  supposed 
that  1  might  be  mistaken  with  respect  to  what  struck  me  as  the  true 
construction  of  the  act  of  1797.  I,  therefore,  with  a  disposition  to 
sustain  it  if  I  could,  although  not  the  decision  of  a  full  court,  nor 
yet  of  all  the  members  of  it  who  heard  the  arguments,  gave  it  a  very 
careful  examination,  and  regret  that  I  cannot  yield  my  assent  to  it. 
It  is  with  great  reluctance,  too,  that  I  withhold  myassentfrom  a  decis- 
ion of  this  court;  and  nothing  but  a  conscientious  conviction  that  there 
is  error  in  it  could  induce  me  to  depart  from  it,  nor  even  then  would  1 
do  so  were  I  satisfied  that  it  had  become  a  rule  of  property  ;  for  I 
am  aware  of  the  advantages  that  are  to  be  derived  from  the  certainty 
of  the  law,  and  that  nothing  does  contribute  more  to  it  than  uniform- 
ity in  the  decisions  of  the  courts. 

Judgment  affirmed. 


CASES 


IN 


THE   SUPREME   COURT 


PENNSYLVANIA. 


WESTERN  DISTRICT,  SEPTEMBER  TERM  1832. 

=====  :     \ 


Beirer  against  Bushfield. 

In  an  action  of  slander  the  declaration  set  out,  that  the  defendant  had  charged  the 
plaintiff  with  having  had  criminal  connection  with  a  woman,  and  the  innuendo  ex- 
plained the  words  to  mean,  that  the  defendant  had  thereby  charged  the  plaintiff  with 
the  crime  of  adultery  ;  a  judgment  for  the  plaintiff  on  this  declaration  was  held  to  be 
good,  although  it  was  not  alleged  that  the  plaintiff  was  a  married  man. 

A  judgment  in  slander  will  not  be  reversed  because  the  words  are  laid  to  have  been 
spoken  the  day  on  which  the  writ  issued,  which  was  two  days  after  the  date  of  the 
praecipe. 

ERROR  to  Westmoreland  county. 

This  was  an  action  of  slander,  in  which  Samuel  Bushfield  was 
plaintiff,  and  David  Beirer  was  defendant.  The  words  laid  in  the 
declaration  to  have  been  spoken  were,  "he  was  guilty  with  a  woman, 
for  he  went  into  bed  with  Mrs  Kislar,  and  stroked  her,  and  he  could 
prove  it :"  "  thereby  meaning  that  he,  the  said  Samuel,  had  com- 
mitted the  crime  of  adultery  with  the  wife  of  the  said  John  Kislar" 
It  was  no  where  stated  that  the  plaintiff  was  a  married  man.  The 
praecipe,  by  which  the  action  originated,  was  dated  the  3d  July;  the 
writ  issued  on  the  4th  July ;  and  the  words  were  laid  to  have  been 
spoken  on  the  4th  July.  The  cause  was  referred  to  arbitrators,  who 
made  an  award  for  the  plaintiff,  upon  which  judgment  was  entered  ; 
and  to  reverse  which  this  writ  of  error  was  sued  out,  and  the  errors 
assigned  were, 


24  SUPREME  COURT  [Pittsburgh, 

[Beirer  v.  Bushfield.] 

1.  That  the  words  were  not  actionable. 

2.  That  they  are  charged  to  have  been  spoken  since  the  com- 
mencement of  the  action. 

/.  B.  rfkxander,  for  the  plaintiff  in  error. 
Kithns,  for  the  defendant  in  error. 

The  opinion  of  the  court  was  delivered  by 

GIBSON,  C.  J. — The  objection  is,  that  the  innuendo  has  carried  the 
meaning  of  the  words  beyond  their  natural  import,  by  converting  them 
into  a  charge  of  adultery  by  a  man  who  is  not  alleged  to  have  been 
married.  The  office  of  an  innuendo  is  undoubtedly  to  fix  the  meaning 
of  the  speaker,  by  a  reference  to  something  gone  before,  where  the  ab- 
stract sense  of  the  words  would  otherwise  fall  short  of  an  imputation 
of  legal  criminality;  and  itis  a  rule,  that  where  it  enlarges  the  meaning 
without  such  a  reference  to  an  imputation  which  might  subject  the 
accused  to  an  indictment  or  civil  disability,  it  is  fatal  to  the  count 
even  after  verdict.  If  simple  fornication,  then,  were  not  an  indictable 
as  well  as  a  scandalous  crime,  I  would  say,  this  indictment  contains 
no  cause  of  action.  But  if  the  charge  of  that  crime  or  adultery  will 
indifferently  support  an  action  for  words,  why  should  the  plaintiff  be 
bound  to  discriminate  very  nicely  between  the  charge  of  the  one  or 
the  charge  of  the  other  1  If  it  be  doubtful  which  was  meant,  it 
surely  cannot  be  material  to  the  cause  of  action,  that  the  defendant 
used  ambiguous  terms,  when  in  either  aspect  the  charge  of  an  in- 
dictable offence  was  intended  to  be  conveyed.  Granting  that  the 
better  course  in  doubtful  cases  is,  to  lay  the  charge  in  both  ways,  in 
order  to  leave  to  the  jury  to  determine  which  was  meant,  yet  it  can- 
not be  said,  that  in  setting  out  his  cause  of  action  defectively  in  this 
respect,  he  has  set  out  words  which  are  not  actionable  in  either 
sense  ;  and  less  than  that  is  insufficient  to  vitiate  the  count  after  an 
award  which  stands  in  the  place  of  a  verdict.  But  as  no  explanatory 
matter  is  laid  as  inducement,  with  which  the  innuendo  can  be  coup- 
led, why  may  it  not  be  rejected  as  surplusage,  the  words  being 
actionable  without  it  1  I  admit  it  may  not  be  done  where  the  innu- 
endo serves  to  make  words  actionable,  which  would  otherwise  not  be 
so ;  for  that  would  extract  the  sting  from  the  charge  as  laid,  and 
deprive  the  declaration  of  its  substance.  May  it  not  be  done, 
however,  where  explanation  is  superfluous,  the  words  imputing 
a  technical  offence  by  force  of  their  intrinsic  meaning  1  I  know 
of  no  case  which  forbids  it.  The  objection,  however,  that  the  impu- 
tation of  adultery,  being  laid  as  the  ostensible  cause  of  action,  must 
be  taken  to  have  been  the  injury  compensated  by  the  jury,  is  not 
without  a  considerable  share  of  technical  force  ;  for  it  would  un- 
doubtedly be  of  little  importance  that  there  was  in  fact  a  cause  of 
action  well  charged,  if  it  were  not  the  one  for  which  the  plaintiff 
recovered.  But  it  is  notorious,  that  juries  are  governed  by  the  case 
proved,  instead  of  the  case  laid  ;  and  such  a  declaration  as  this,  is 


Sept.  1832.]  OF  PENNSYLVANIA.  25 

[Beirer  v.  Bushfield.] 

not  one  to  require  a  departure  from  the  broad  line  of  demarcation 
already  established,  by  tripping  up  a  plaintiff  who  has  recovered  for 
a  substantive  cause  of  action  of  some  sort,  however  inartificially  laid. 
Beside,  it  is  not  too  much  to  presume,  if  we  are  to  have  recourse  to 
presumptions,  that  the  jury  gave  damages  for  the  cause  of  action  laid, 
in  that  aspect  in  which  alone  it  was  maintainable ;  and  the  only 
thing  laid  here  in  contemplation  of  law,  was  an  imputation  of  forni- 
cation. The  question  then  is,  whether  these  words  are  actionable 
when  stripped  of  the  meaning  assigned  to  them  by  the  innuendo;  and 
after  the  decision  in  Andrews  v.  Koppenheajfer,  3  Serg.  4*  Rawle  255, 
and  Walton  v.  Singleton,  7  Serg.  fy  Rawle  451,  that  the  sense  in  which 
words  are  received  by  the  world,  is  that  which  courts  of  justice  are 
to  ascribe  to  them,  that  question  cannot  admit  of  a  doubt,  for  the 
words  in  this  declaration  convey  to  the  popular  apprehension  a  charge 
of  fornication  in  terms  less  coarse  though  not  less  explicit  than  the 
most  pointed  that  could  be  selected.  The  remaining  objection,  that 
the  words  are  laid  to  have  been  spoken  subsequently  to  the  com- 
mencement of  the  action,  is  not  sustained.  The  filing  of  the  praecipe 
might  be  a  good  suing  out  of  the  writ  to  avoid  the  statute  of  limi- 
tations, but  nothing  short  of  its  actual  exit  ought  to  defeat  a  merito- 
rious action  by  an  objection  so  sharp  and  technical. 
Judgment  affirmed. 


26  SUPREME  COURT  [Pittsburgh, 


Westmoreland  Bank  against  Rainey. 

The  issuing  of  a  scire  facias,  which  is  returned  nihil,  will  not  operate  to  con- 
tinue the  lien  of  a  judgment  beyond  five  years ;  nor  will  the  issuing  of  a  fieri  facias 
so  operate,  since  the  passage  of  the  act  of  1827. 

A  plaintiff  having  two  judgments,  which  are  liens  on  real  estate  sold  by  the 
sheriff,  cannot  apply  the  proceeds  to  either  judgment,  at  his  option,  by  which  in- 
dorsers  may  be  affected;  but  the  law  will  appropriate  the  fund  to  the  older  judgment, 
whose  lien  is  regularly  preserved. 

WRIT  of  error  to  Westmoreland  county. 

This  case  originated  on  a  writ  of  scire  facias  by  the  Westmoreland 
Bank  of  Pennsylvania  against  Robert  Rainey,  to  revjve  a  judgment 
against  him.  The  parties  agreed  to  consider  the  following  facts  in 
the  nature  of  a  special  verdict. 

"  On  the  4th  of  December  1816,  James  Irwin  drew  a  promissory 
note  in  favour  of  John  Kirkpatrick,  for  the  sum  of  700  dollars,  pay- 
able at  the  Westmoreland  Bank  of  Pennsylvania,  which  said  note  was 
indorsed  by  the  said  John  Kirkpatrick,  and  afterwards  by  Robert 
Rainey,  and  discounted  at  the  said  Westmoreland  Bank  of  Pennsylva- 
nia, as  will  more  clearly  appear  by  a  copy  of  said  note,  which  is  made 
a  part  of  this  statement.  That  the  said  Westmoreland  Bank  of 
Pennsylvania  afterwards  had  the  said  note  regularly  protested  for 
non  payment,  and  brought  suit  against  the  said  John  Kirkpatrick, 
to  recover  the  amount  of  said  note  in  the  common  pleas  of  West- 
moreland to  August  term  1817,  JVo.  79.  The  declaration  being  for 
money  had  and  received,  and  not  on  the  note,  although  the  note 
was  the  sole  cause  of  action.  On  which  suit  a  judgment  was 
obtained  by  default,  on  the  llth  January  1819,  as  appears  by  the 
reccrd  and  proceedings  in  said  cause,  which  are  made  a  part  of  this 
statement.  On  the  said  judgment  No.  79,  August  term  1817,  a  writ 
of  inquiry  of  damages  issued  to  February  term  1822,  No.  62  ;  and  on 
the  14th  February  1822,  inquisition  held  and  the  damages  assessed 
at  941  dollars  and  89  cents  ;  and  on  the  15th  January  1823,  a  judg- 
ment was  obtained  on  the  inquisition,  as  appears  by  the  record  and 
proceedings  in  No.  62,  February  term  1822,  which  are  made  apart 
of  this  statement.  •  That  a  scire  facias  to  revive  the  judgment  No. 
62,  February  term  1822,  issued  to  February  term  1825,  No.  12 ;  in 
which  a  judgment  was  obtained  the  1st  February  1826,  as  appears 
by  the  record  and  proceedings  in  No.  12,  February  term  1825,  which 
are  made  a  part  of  this  statement. 

"That  a  suit  was  brought  by  the  said  Westmoreland  Bank  of 
Pennsylvania,  to  recover  the  amount  due  on  the  said  note  against 
Robert  Rainey,  the  second  indorser  on  said  note,  in  the  court  of  com- 
mon pleas  of  Westmoreland  county,  to  August  term  1817,  No.  80. 


Sept.  1832.]  OF  PENNSYLVANIA.  27 

[Westmoreland  Bank  v.  Rainey.] 

The  declaration  being  for  money  had  and  received,  and  not  on  the 
note,  although  the  note  was  the  sole  cause  of  action.  On  which 
suit  a  judgment  by  default  was  obtained  on  the  llth  January  1819, 
as  appears  by  the  record  and  proceedings  in  said  cause,  which  are 
made  a  part  of  this  statement.  That  a  writ  of  inquiry  of  damages 
issued  on  the  judgment  No.  80,  August  term  1817,  to  February  term 
1822,  No.  63 ;  and  on  the  14th  February  1822,  an  inquisition  was 
held,  and  the  damages  assessed  at  the  sum  of  941  dollars  and  89 
cents  ;  and  on  the  15th  January  1823,  judgment  entered  on  the  in- 
quisition, as  appears  by  the  record  and  proceedings  in  No.  63,  Feb- 
ruary term  1822,  which  are  made  a  part  of  this  statement.  That 
a  scire  facias  issued  to  February  term  1825,  No.  13,  to  revive  the 
judgment  No  63,  February  term  1822,  in  which  a  judgment  was 
obtained  on  the  1st  February  1826,  as  appears  by  the  record  and 
proceedings,  which  are  made  a  part  of  this  statement.  To  revive 
the  last  mentioned  judgment,  No.  13,  February  term  1825,  the  pre- 
sent writ  of  scire  facias  is  brought. 

"  That  the  said  Westmoreland  Bank  of  Pennsylvania  instituted 
a  suit  against  the  said  John  Kirkpatrick,  to  February  term  1819,  No. 
89,  on  a  note  dated  the  28th  October  1818,  drawn  by  a  certain 
•Andrew  Sterrett  in  favour  of  a  certain  John  Ramsey,  indorsed  by  the 
said  John  Ramsey,  and  afterwards  by  the  said  John  Kirkpatrick^  for 
the  sum  of  1 5,250  dollars,  payable  at  the  said  Westmoreland  Bank 
of  Pennsylvania.  That  on  the  20th  day  of  April  1819,  the  attorney 
of  the  said  John  Kirkpatrick  confessed  a  judgment  to  the  said  West- 
moreland Bank  of  Pennsylvania  in  the  said  suit,  No.  89,  February  term 
1819,  for  15,518  dollars  and  50  cents,  as  more  fully  appears  by  the 
record  and  proceedings  in  the  said  suit,  No.  89,  February  term  1819, 
which  are  made  a  part  of  this  statement.  That  at  the  time  of 
entering  the  judgment  in  No.  79,  August  term  1817,  to  wit  on  the 
llth  January  1819,  the  said  John  Kirkpatrick  was  seised  and  pos- 
sessed of  different  parcels  of  real  estate  in  Westmoreland  county,  one 
parcel  of  which  was  sold  by  the  sheriff  of  said  county  on  the  1st  of 
March  1826,  on  third  pluries  venditioni  exponas,  No.  85,  February  term 
1826,  on  judgment  No.  84  of  August  term  1817,  The  Westmoreland 
Bank  of  Pennsylvania  against  John  Kirkpatrick.  That,  after  paying 
off  all  liens  against  the  said  John  Kirkpatrick  prior  to  the  1 1  th  Janu- 
ary 1819,  the  time  of  entering  the  judgment  by  default  in  No.  79 
of  August  term  1817,  there  remained  unappropriated  in  the  hands 
of  the  sheriff,  a  sum  sufficient  to  have  discharged  the  amount  due 
on  the  said  judgment  No.  79,  August  term  1817,  if  the  same  was  a 
lien  at  and  from  the  date  of  the  judgment,  to  wit  the  llth  January 
1819,  and  which  sum  yet  remains  in  the  hands  of  the  sheriff  unap- 
propriated. That  on  the  19th  February  1827,  the  court  of  common 
pleas  of  Westmoreland  county  made  an  order  on  the  sheriff  of  said 
county  to  pay  over  the  money  arising  from  the  sale  aforesaid,  in 
discharge  of  the  oldest  liens  remaining  unsatisfied  against  the  said 
John  Kirkpatrick,  and  on  the  24th  February  1831,  a  rule  was  entered 


28  SUPREME  COURT  [Pittsburgh, 

[Westmoreland  Bank  v.  Rainey.] 

in  said  cose,  to  show  cause  why  said  money  should  not  be  paid  to 
judgment  89,  February  term  1819,  which  is  undisposed  of.  That 
on  the  31st  August  1830,  one  other  parcel  of  the  real  estate,  of  which 
the  said  John  Kirkpatrick  was  seised  and  possessed  on  the  llth 
January  1819,  and  on  which  no  liens  existed  prior  to  that  day,  was 
sold  under  a  writ  of  venditioni  exponas  No.  72,  August  term  1830,  on 
writ  of  fieri  facias,  No.  90,  August  term  1819,  issued  on  the  said 
judgment  No.  89,  February  term  1819,  the  records  in  which  cases 
are  made  a  part  of  this  statement.  That  a  scire  facias  issued  on  No. 
89,  February  term  1819,  to  February  term  1829,  No.  131,  and  an 
alias  scire  facias  to  August  term  1830,  No.  20.  The  records  in  which 
cases  are  made  a  part  of  this  statement.  That  the  money  arising 
from  the  sale  made  on  the  31st  of  August  1830,  after  the  payment 
of  the  costs,  amounted  to  3932  dollars  and  43  cents,  which  sum  was 
paid  by  the  sheriff  of  Westmoreland  county  to  the  said  Westmoreland 
Bank  of  Pennsylvania  on  the  judgment  No.  89,  February  term  1819. 
That  a  large  balance  is  yet  due  the  Westmoreland  Bank  of  Pennsyl- 
vania on  judgment  No.  89,  February  term  1819,  exceeding  the  sum 
claimed  by  the  plaintiff  against  the  defendant  in  this  suit.  Towards 
the  payment  of  which  the  plaintiff  claims  the  appropriation  of  the 
money  in  the  sheriff's  hands,  as  before  stated,  and  unappropriated. 
If,  from  the  statement  of  facts  in  this  case,  the  court  should  be  of 
opinion  that  the  plaintiff  is  entitled  to  recover  from  the  defendant 
the  amount  of  judgment  No.  13,  February  term  1825,  The  West- 
moreland Bank  of  Pennsylvania  v.  Robert  Rainey,  judgment  shall 
be  entered  for  the  amount  thereof  with  costs.  If  the  court  should 
be  of  opinion  that  the  plaintiff  is  not  entitled  to  recover  the  same  in 
this  suit,  judgment  shall  be  rendered  for  the  costs  of  this  and  former 
suits  on  which  this  suit  is  brought." 

The  court  below  rendered  a  judgment  for  the  defendant. 

Foster,  for  the  plaintiff  in  error,  cited,  Pennock  v.  Hart,  8  Serg.  fy 
Rawle  369. 

Nichols,  for  the  defendant  in  error;  whom  the  court  declined  to  hear. 

The  opinion  of  the  court  was  delivered  by 

KENNEDY,  J. — This  was  a  writ  of  scire  facias  quare  executio  non  sued 
out  of  the  court  of  common  pleas  of  Westmoreland  county  by  the 
Westmoreland  Bank,  upon  a  judgment  which  it  had  in  that  court 
against  the  defendant  in  error,  for  the  amount  of  a  note  which  he  had 
indorsed  to  the  bank.  The  note  was  drawn  by  a  certain  James  Irwin 
in  favour  of  John  Kirkpatrick  or  order,  and  indorsed  by  Kirkpatrick  to 
the  defendant.  A  judgment  at  the  suit  of  the  bank  was  likewise  ob- 
tained against  Kirkpatrick  for  the  amount  of  the  note.  These  judg- 
ments in  favour* of  the  bank  against  Kirkpatrick  and  Rainey  were  both 
rendered  originally  on  the  15th  of  January  1823,  and  afterwards 
revived  by  writs  of  scire  facias  issued  to  February  term  1825,  in  which 


Sept.  1832.]  OF  PENNSYLVANIA.  29 

[Westmoreland  Bank  v.  Rainey.] 

judgments  of  revival  were  regularly  entered  on  the  1st  of  February 
1826.  The  amount  of  each  judgment  on  the  15th  of  1823  was, 
941  dollars  and  89  cents,  besides  costs  of  suit.  The  bank,  on  the 
20th  of  April  1819,  had  got  another  judgment  in  the  same  court 
against  Kirkpatrick,  for  the  sum  of  15,508  dollars  and  50  cents, 
besides  costs  of  suit.  Upon  this  last  judgment  a  fieri  facias  was 
sued  out,  returnable  to  August  term  1819,  and  levied  upon  two 
tracts  of  land  lying  in  Westmoreland  county,  then  the  property 
of  Kirkpatrick,  and  continued  to  be  so  until  they  were  afterwards 
sold  by  the  sheriff  of  that  county.  The  first  on  the  1st  day  of 
March  1826,  under  a  third  pluries  venditioni  exponas,  sued  out  of 
the  same  court,  at  the  suit  of  the  bank,  returnable  to  February 
term  of  that  year ;  and  the  second  tract  on  the  31st  of  August  1830, 
under  a  writ  of  venditioni  exponas  to  August  term  of  that  year,  upon 
the  levy  under  the  judgment  last  above  mentioned.  The  money 
arising  from  this  last  sale,  after  paying  the  costs  out  of  it,  amounted 
to  3932  dollars  and  43  cents.  Upon  this  last  mentioned  judgment 
a  writ  of  scire  facias  was  sued  out,  returnable  to  February  term  1829, 
upon  which  the  sheriff  made  a  return  of  nihil ;  and  afterwards  to 
August  term  1830  an  alias  scire  facias  was  sued  out,  to  which  the 
sheriff  returned  "  served."  The  money  arising  from  either  sale  was 
more  than  sufficient  to  satisfy  the  judgment  for  941  dollars  and  89 
cents  against  Kirkpatrick  and  all  prior  liens,  leaving  out  of  view  the 
judgment  for  15,508  dollars  and  50  cents;  but  the  aggregate  of 
both  sales  is  not  sufficient  to  discharge  both  judgments. 
•  Upon  these  facts,  which  are  collected  from  a  statement  agreed  on 
by  the  parties  in  this  case,  and  to  be  considered  in  the  nature  of  a 
special  verdict,  the  question  arises,  whether  the  judgment  for  941 
dollars  and  89  cents  against  Kirkpatrick  must  be  first  satisfied  out  of 
the  money  made  by  either  sale,  before  the  application  of  it  towards 
satisfaction  of  the  judgment  for  the  15,508  dollars  and  50  cents. 
For  if  it  be  that  the  money  of  either  sale  ought  to  be  appropriated  to 
the  payment  of  the  smaller  judgment  first,  in  preference  to  the  larger, 
the  law  will  make  that  appropriation  of  it  in  the  hands  of  the  bank, 
as  it  is  the  plaintiff  in  both  judgments  and  has  received  the  money  of 
both  sales,  after  satisfying  the  prior  liens  upon  the  lands  sold. 

Although  the  smaller  judgment  is  of  later  date  than  the  larger, 
yet  the  lien  of  it  was  continued  and  kept  alive  until  after  both  sales 
were  made.  Its  lien  commenced  with  the  date  of  the  entry  of  it,  on 
the  15th  of  January  1823,  and,  under  a  writ  of  scire  facias  issued 
returnable  to  February  term  1825,  was  revived  by  the  entry  of  a 
judgment  for  that  purpose  on  the  1st  of  February  1826,  which  was 
sufficient  to  have  kept  it  alive  for  the  space  of  five  years  then  next 
following.  The  larger  judgment  was  entered,  as  we  have  seen,  on 
the  20th  of  April  1819,  and  a  writ  of  fieri  facias  sued  out,  not  return- 
able to  the  August  term  following  ;  under  which  a  levy  was  made, 
and  returned  by  the  sheriff,  upon  the  lands  ;  from  the  sale  of  which 
by  the  sheriff,  afterwards,  the  moneys  arose,  the  appropriation  of 


30  SUPREME  COURT  [Pittsburgh, 

[Westmoreland  Bank  v.  Rainey.] 

which  has  given  rise  to  this  controversy.  Under  the  construction  put 
upon  the  act  of  1798,  limiting  the  liens  of  judgments  upon  the  lands  of 
the  defendants  to  a  period  of  five  years,  unless  revived  by  scire  facias  in 
the  manner  therein  prescribed  by  this  court  in  the  case  of  Young  v. 
Taylor,  2  Binn.  218;  and  The  Commonwealth  v.  M'Kisson,  13  Serg. 
fy  Rawle  144  ;  this  levy  would  have  been  sufficient  to  have  continued 
the  lien  of  the  judgment  upon  the  lands  without  a  renewal  every  five 
years  under  the  act,  had  it  not  been  for  the  passage  of  the  act  of  the 
26th  of  March  1827,  which  has  expressly  required  a  renewal  of  a 
judgment  every  five  years,  in  order  to  continue  its  lien,  "  notwith- 
standing an  execution  may  have  been  issued  within  a  year  and  a 
day  from  the  rendering  of  such  judgment."  This  last  act,  however,- 
allowed  two  years  from  its  passage  for  the  revival  of  the  liens  of 
such  judgments  as  were  continued  beyond  the  period  of  five  years, 
merely  by  issuing  execution  thereon,  &c.  And  by  another  act  passed 
the  23d  of  March  1829,  the  time  for  this  purpose  was  extended  one 
year  longer  from  that  date. 

It  has  been  contended  in  this  case  by  the  counsel  for  the  bank, 
the  plaintiff  in  error,  that  the  requisitions  of  these  acts  of  assembly 
have  been  substantially  complied  with ;  and  that  the  lien  of  the 
larger  judgment  has  been  continued  and  preserved.  That  a  scire 
facias  was  sued  out,  returnable  to  February  term  1829,  which  was 
within  two  years  after  the  passage  of  the  act  of  1827 ;  and  that 
although  this  writ  was  returned  nihil  by  the  sheriff,  and  no  other 
was  issued  until  August  term  1830,  after  an  intervention  of  five 
terms  of  the  court  out  of  which  the  first  writ  of  scire  facias  was  sued, 
yet  a  continuance  of  the  first  scire  facias  may  be  entered  from  term 
to  term,  down  to  the  issuing  of  the  alias  or  second  scire  facias,  and 
thus  connect  the  second  with  the  first,  and  give  it  a  relation  and 
retrospective  operation,  back  to  the  date  of  issuing  the  first.  It  has 
been  likened  to  the  case  when  the  plea  of  the  statute  of  limitations 
has  been  avoided  by  the  plaintiffs  showing  in  his  replication,  that 
the  process  in  the  suit  was  issued  within  the  six  years,  and  returned 
non  est  inventus  by  the  sheriff,  and  regularly  continued  on  the  docket 
or  roll  from  term  to  term,  until  the  time  of  declaring.  Salk.  420, 
pi.  2 ;  421,  pi.  6  ;  1  Lord  Raym.  435  ;  Com.  Dig;  action  on  the  case 
upon  assumpsit  H .  7  ;  3  Term  Rep.  664  ;  1  Dall.  411  ;  12  Johns. 
Rep.  430.  And  that  in  such  cases  the  continuances  may  be  entered 
at  any  time.  6  Term  Rep.  618  ;  7  Term  Rep.  614.  It  has  also 
been  said,  that  this  principle  has  been  applied  to,  and  sanctioned  by 
this  court  in  the  case  of  a  scire  facias  issued  under  the  act  of  1798, 
for  the  purpose  of  reviving  a  judgment  and  continuing  its  lien  be- 
yond the  five  years.  Pennock  v.  Hart,  8  Serg.  fy  Rawle  369. 

In  order  to  see  whether  or  not  what  has  been  urged  by  the  counsel 
for  the^  plaintiff  in  error  will  be  sufficient  to  answer  the  purpose,  we 
must  refer  to  the  acts  of  the  legislature  upon  this  subject. 

The  second  section  of  the  act  of  the  4th  of  April  1798,  Purdon's 
Dig.  421,  declares,  that  "no  judgment  thereafter  entered  in  any 


Sept.  1832.]  OF  PENNSYLVANIA.  31 

[Westmoreland  Bank  v.  Rainey.] 

court  of  record  within  this  commonwealth,  shall  continue  a  lien  on 
the  real  estate  of  the  person  against  whom  such  judgment  may  be 
entered,  during  a  longer  term  than  five  years  from  the  first  return 
day  of  the  term  of  which  such  judgment  may  be  so  entered,  unless 
the  person  who  may  obtain  such  judgment,  or  his  legal  representa- 
tives, or  other  persons  interested,  shall,  within  the  said  term  of  five 
years,  sue  out  a  writ  of  scire  facias  to  revive  the  same." 

The  third  section,  which  directs  the  course  of  proceeding  on  such 
writs  of  scire  facias  after  that  they  shall  have  been  sued  out,  enacts, 
that  they  "  shall  be  served  on  the  terre-tenants  or  persons  occupying 
the  real  estates  bound  by  the  judgments ;  and  also  when  he  or  they 
can  be  found,  on  the  defendant  or  defendants,  his  or  their  feoffee  or 
feoffees,  or  on  the  heirs,  executors  or  administrators  of  such  defend- 
ant or  defendants,  his  or  their  feoffee  or  feoffees.  When  the  land  or 
estate  is  not  in  the  immediate  occupation  of  any  person,  and  the 
defendant  or  defendants,  his  or  their  feoffee  or  feoffees,  or  tbeir  heirs, 
executors  or  administrators,  cannot  be  found,  proclamation  shall  be  made 
in  open  court,  at  two  succeeding  terms  by  the  oyer  of  the  court  in  which 
such  proceedings  may  be  instituted,  calling  on  all  persons  interested 
to  show  cause  why  such  judgment  should  not  be  revived  ;  and  on 
proof  of  due  service  thereof,  or  on  proclamation  having  been  made  in  the 
manner  herein  before  set  forth,  the  court  from  which  the  said  writ  may 
have  issued,  shall,  unless  sufficient  cause  to  prevent  the  same  is 
shown,  at  or  before  the  second  term  subsequent  to  the  issuing  of  such  writ, 
direct  and  order  the  revival  of  any  such  judgment,  during  another  period 
of  five  years,  against  the  real  estate  of  such  defendant  or  defendants  ; 
and  proceedings  may  in  like  manner  be  had  again,  to  revive  any 
such  judgment  at  the  end  of  the  said  period  of  five  years,  and  so  from 
period  to  period,  or  after,  as  the  same  may  be  found  necessary." 

The  sections  of  the  act  of  1798  not  only  direct  the  time  within 
which  a  writ  of  scire  facias  shall  be  issued,  for  the  purpose  of  con- 
tinuing the  lien  of  a  judgment,  but  how  it  shall  afterwards  be  served 
and  upon  whom ;  and  in  case  the  land  be  unoccupied,  and  the  per- 
son or  persons  on  whom  it  is  ordered  to  be  served  are  not  to  be  found, 
that  then  proclamation  shall  be  made  by  the  crier  of  the  court,  at 
two  succeeding  terms  ;  and  in  case  of  either  a  service  of  the  writ  or 
proclamation  made  as  directed  by  the  crier,  and  every  case  must  fall 
within  the  one  or  other  of  these  two  classes,  the  judgment  of  revival, 
unless  sufficient  cause  be  shown,  to  prevent  the  same  at  or  before  the 
same  term  subsequent  to  the  issuing  of  the  writ,  must  be  entered.  Here  is 
an  express  limitation  of  time,  within  which  the  judgment  of  revival 
may  or  shall  be  entered,  unless  sufficient  cause  be  shown  to  the 
court  to  prevent  it.  I  do  not  wish  to  be  understood  as  saying  that, 
unless  sufficient  cause  be  shown,  that  the  judgment  in  all  cases  must 
be  revived  at  or  before  the  second  term  subsequent  to  the  issuing  of 
the  writ,  in  order  to  keep  the  lien  of  the  judgment  alive ;  but  I  think 
it  sufficiently  manifest,  from  this  part  of  the  act,  that  the  legislature 
intended  that  there  should  be  no  unreasonable  delay  in  proceeding 


32  SUPREME  COURT  [Pittsburgh, 

[Westmoreland  Bank  v.  Raincy.] 

upon  the  writ  of  scire  facias  after  it  was  sued  out.  Now  in  the  pre- 
sent case,  the  plaintiffs,  without  any  manner  of  excuse,  or  cause 
whatever  for  it,  have  lain  by,  after  suing  out  their  writ  of  scire  facias, 
and  a  return  of  nihil  having  been  made  to  it  by  the  sheriff,  until 
five  or  six  subsequent  terms  passed  away,  without  issuing  an  alias 
writ  of  scire  facias,  or  having  proclamation  made,  or  taking  any  step 
whatever  in  the  cause,  to  manifest  their  intention  of  proceeding  fur- 
ther in  it.  And  during  the  interim  the  time  allowed  by  the  acts  of 
1827  and  1829  for  issuing  a  writ  of  scire  facias,  and  proceeding 
thereon,  as  directed  by  the  three  acts  on  this  subject,  expired.  The 
doctrine  of  entering  continuances,  in  case  of  a  summons  ad  responden- 
dum  sued  out  by  the  plaintiff,  and  returned  nihil  by  the  sheriff, 
or  of  a  capias  returned  nan  est  inventus,  ought  not  to  have  any  bearing 
upon,  or  be  applied  to  the  case  of  a  writ  of  scire  facias  sued  out  by  a 
plaintiff  under  acts  of  assembly,  for  the  purpose  of  continuing  the 
lien  of  his  judgment  upon  the  real  estate  of  the  defendant ;  because 
I  consider  it  repugnant,  not  only  to  the  letter,  but  to  the  spirit  and 
meaning  of  these  acts.  The  plea  of  the  statute  of  limitations  was 
formerly  looked  upon  by  judges  as  odious,  and  entitled  to  no  favour. 
Indeed,  great  astuteness  and  ingenuity  were  exercised  by  them  to 
evade  both  the  plain  letter  and  meaning  of  the  statute,  but  the  judi- 
cial mind  has  been  much  reformed  of  late  in  regard  to  it. 

In  Pennock  v.  Hart,  which  has  been  relied  on  by  the  counsel  for 
the  plaintiff  in  error,  it  was  held  by  this  court,  that  where  the  scire 
facias  was  sued  out  within  the  five  years,  and  returned  tarde  venit,  and 
an  alias  scire  facias  was  issued  after  the  expiration  of  that  period, 
and  after  one  term  had  intervened,  the  process  might  be  con- 
nected, and  the  commencement  of  the  proceeding  should  be  referred 
to  the  issuing  of  the  original  scire  facias.  Without  overruling  this 
case  of  Pennock  v.  Hart,  it  might,  perhaps,  be  sufficient  to  say,  that 
it  is  as  different  from  the  case  under  consideration  as  one  is  from  Jive ; 
or,  if  there  be  no  difference  between  the  intervention  of  five  terms 
and  one  term,  I  do  not  see  any  reason  why  a  distinction  should  be 
taken  between  five  terms,  and  twenty  or  one  hundred,  and  thus  the 
lien  of  the  judgment  might  be  extended  to  an  unlimited  period,  by 
suing  out  a  scire  facias  within  the  first  period  of  five  years  after  the 
entry  of  it,  and  having  a  return  of  nihU  or  tarde  venit  made  to  it  by 
the  sheriff,  and  then  after  that,  by  entering  the  continuances  upon 
the  docket  once  in  every  succeeding  term  of  five  years,  without  suing 
out,  in  fact,  any  subsequent  writ  of  scire  facias ;  which,  1  think  will  be 
admitted  by  every  one,  would  be  a  palpable  disregard  of  the  direc- 
tions of  the  acts  on  this  subject. 

It  may  also  be  observed,  that  the  return  to  the  first  scire  facias  in 
Pennock  v.  Hart  was  tarde  venit,  and  not  nihil.  I  consider  tarde 
venit,  if  true,  a  proper  return  to  the  writ,  because  no  act  of  the  legis- 
lature will  be  construed  to  require  an  impossibility  ;  but  I  doubt  very 
much  whether  nihil  is  a  sufficiently  expressive  return  to  answer 
what  is  required  by  the  act  of  1798,  which  has  been  partly  recited. 


Sept.  1832.]  OF  PENNSYLVANIA.  33 

[Westmoreland  Bank  v.  Rainey.] 

It  is  certain  that  nihil  does  not  imply  a  service  of  the  writ  ;  and  it  is 
equally  clear  from  the  terms  of  the  act,  that  the  writ  ought  to  appear, 
from  the  return  of  the  sheriff  made  to  it,  either  to  have  been  served 
upon  the  person  or  persons  mentioned  in  the  act,  or  that  "  the  land 
or  estate  was  not  in  the  immediate  occupation  of  any  person,  and 
that  the  defendant  or  defendants,  his  or  their  feoffee  or  feoffees,  or  their 
heirs,  executors  or  administrators  could  not  be  found."  One  or  other 
of  these  two  returns  ought  to  be  made  substantially,  in  some  shape, 
by  the  sheriff;  if  he  have  sufficient  time  before  the  return  day  of  the 
writ  to  enable  him  to  do  so:  if  not,  then  he  should  return  tarde  venit. 
No  other  than  one  of  the  two  first  will  entitle  the  plaintiff  to  a  revival 
of  his  judgment,  so  as  to  continue  in  force  its  original  lien  according 
to  the  requisitions  of  the  act.  If,  then,  the  return  of  nihil  is  to  be 
considered  as  equivalent  to,  or  substantially  implying  all  that  is 
required  in  the  second  case,  where  the  land  is  unoccupied,  and  the 
defendant,  &c.  not  to  be  found,  the  plaintiffs  failed  entirely  to  have 
their  judgment  revived  by  proclamation,  as  directed  by  the  act. 
They,  instead  of  seeking  a  revival  of  their  judgment,  agreeably  to 
the  provisions  of  the  act,  lie  by  for  the  space  of  sixteen  or  seven- 
teen months,  and  then  proceed  by  suing  out  another  writ  of  scire 
facias,  which  shows  that  their  counsel  must  have  considered  that  the 
return  of  nihil  was  not  such  a  return  as  entitled  them  to  demand  a 
judgment  of  revival  by  proclamation  ;  or  otherwise,  they  had  slept 
too  long,  and  suffered  the  time  to  pass  by  within  which,  according  to 
the  act,  it  should  have  been  done.  I  am,  therefore,  decidedly  of 
opinion,  that  the  lien  of  the  larger  judgment  had  expired  before  the 
sales  of  the  last  tract  of  land  ;  and  it  is  plain  that  it  cannot  be  claimed 
by  the  plaintiffs,  to  the  exclusion  of  other  lien  creditors. 

But  it  is  contended,  in  the  next  place,  that  as  there  is  no  other 
than  they  who  had  a  lien  upon  this  last  tract  of  land  at  the  time  of 
the  sale  of  it,  that  they  have  a  right  to  apply  the  whole  of  the 
money  arising  from  the  sale  towards  paying  the  larger  judgment, 
although  no  lien  on  the  land  at  the  time  of  sale,  to  the  exclusion  of 
the  smaller  judgment,  which  was  a  lien  at  that  time  ;  because  they 
are  the  plaintiffs  in,  and  the  owners  of  both  judgments.  I  am 
inclined  to  think  that  the  plaintiffs  could  not  do  this  without  the 
consent  of  the  defendant  in  the  judgments,  even  if  no  other  person 
were  interested  in  the  appropriation  of  the  money ;  but  I  give  no 
decided  opinion  upon  this  point,  as  I  deem  it  unnecessary  to  the 
decision  of  the  present  case.  The  object  of  the  plaintiffs  is  obvious. 
They  consider  the  security  which  they  have  for  the  payment  of  the 
debt  in  this  larger  judgment  as  insufficient,  and  therefore  it  is  that 
they  wish  to  have  all  the  money  arising  from  the  sale  of  Kirkpa- 
trick's  property  appropriated  to  the  payment  of  it,  and  to  make 
Rainey,  who  is  bound  only  as  an  indorser,  subsequent  to  Kirkpatrick, 
who  is  bound  as  the  first,  to  the  plaintiffs  for  the  payment  of  the 
debt  embraced  in  the  smaller  judgment,  which  was  a  lien  upon  the 
land  at  the  time  of  the  sale,  pay  to  them  the  whole  of  this  smaller 


34  SUPREME  COURT  [Pittsburgh, 

[Westmoreland  Dank  v.  Rainey.] 

judgment.  Rainey  resists  the  application  which  the  plaintiffs  wish 
to  have  made  of  the  money,  and  demands  that  the  smaller  judg- 
ment, for  which  he  is  liable,  as  the  last  indorser,  shall  be  paid  first 
out  of  it.  It  must  be  admitted  that  he  has  a  deep  interest  in  this 
matter;  and  as  neither  Irwin,  the  drawer  of  the  note,  nor Kirkpatrick, 
the  first  indorser  of  it,  is  able  to  indemnify  or  to  reimburse  Rainey 
the  amount,  or  any  part  of  it,  if  he  were  to  pay  it,  it  is  manifest,  that 
if  the  money  arising  from  the  last  sale  be  not  appropriated  according 
to  seniority  of  liens,  or  rather,  if  it  be  applied  to  the  payment  of  a 
judgment  that  was  no  lien,  in  preference  to  one  that  was  a  lien  at 
the  time  of  sale,  Rainey  will  be  a  loser  to  the  amount  of  the  smaller 
judgment.  It  appears  to  me  that  Rainey  has  a  right  at  law,  as  well 
as  in  equity,  to  require  that  the  lien  judgment  shall  be  first  satisfied; 
because  this  is  the  order  prescribed  by  law  :  again,  if  he  had  paid  to 
the  bank  this  debt,  for  which  this  latter  judgment  was  entered  against 
Kirkpatrick,  he  would  in  equity  have  been  entitled  to  an  assignment 
of  the  judgment,  and  to  have  been  subrogated  to  all  the  rights  of  the 
bank,  as  both  Irwin  and  Kirkpatrick  were  bound  to  keep  him  indem- 
nified, upon  the  principle  of  their  being  principals  with  respect  to 
him,  and  his  standing  in  the  relation  of  surety  for  them.  The  plain- 
tiffs must,  therefore,  be  considered  as  having  received  the  money 
arising  from  the  last  sale,  in  satisfaction  of  the  principal  and  interest 
due  upon  the  smaller  judgment,  so  far  as  it  was  necessary  for  this 
purpose,  which,  of  course,  extinguishes  the  debt  and  interest  involved 
in  the  judgment  of  Rainey  upon  which  the  scire  facias  in  this  case 
was  issued.  The  costs  of  that  judgment,  and  of  this  suit  by  scire  facias 
upon  it,  have  never  been  paid,  and  cannot  be  claimed  out  of  the 
money  arising  from  the  sale  of  Kirkpatrick'' s  property  :  Rainey  is  still 
liable  for  the  payment  of  them ;  and  as  this  was  all  that  the  judg- 
ment of  the  court  below  was  rendered  for  against  him,  it  is  conceived 
to  be  right,  and,  therefore,  affirmed. 
Judgment  affirmed. 


Sept.  1832.]  OF  PENNSYLVANIA.  35 


Shepherd  against  Watson. 

When  a  right  of  way  appurtenant  to  land  is  plainly  conveyed  by  the  terms  of  a 
deed,  it  is  incompetent  to  prove  by  parol  that  it  was  not  the  intention  of  the  parties 
that  it  should  be  conveyed.  And  upon  such  evidence  having  been  given,  it  is  error 
in  the  court  to  instruct  the  jury,  that  they  must  be  governed  in  making  their  verdict 
by  such  evidence  of  the  intention  of  the  parties. 

ERROR  to  Mleghany  county. 

This  was  an  action  of  trespass  quare  clausumfregit,  by  Rachel  Wat- 
son against  John  Shepherd.  The  only  question  was,  whether  the 
plaintiff  had  a  right  of  way  to  a  certain  four  feet  alley.  What  gave 
rise  to  the  question  is  fully  stated  in  the  opinion  of  the  court. 

Burke,  for  the  plaintiff  in  error.  Cited,  4  Mass.  496  ;  6  Serg.  <$• 
Rawle  70 ;  1  Serg.  #  Rawle  227  ;  8  Johns.  304,  406  ;  B  Johns.  387. 

W.  W.  Fetterman,  for  the  defendant  in  error,  cited,  1  Rawle  108. 

The  opinion  of  the  Court  was  delivered  by 

KENNEDY,  J. — This  was  an  action  of  trespass  quare  clausum  fregit 
brought  in  the  court  of  common  pleas  of  Alleghany  county  by  Rachel 
Watson,  the  defendant  in  error,  against  John  Shepherd,  the  plaintiff 
in  error.  Issues  were  joined  upon  the  pleas  of  non  cul.  with  leave, 
&c.,  liberum  tenementum,  and  right  of  way.  The  only  matter  in  con- 
troversy was,  whether  the  plaintiff  had  a  right  to  the  use  of  an  alley 
four  feet  hi  width,  to  the  full  extent  of  eighty-eight  feet,  along  side 
of  a  messuage  and  lot  of  ground  situate  and  being  in  the  city  of  Pitts- 
burgh, fronting  on  Diamond  alley  about  fourteen  feet,  and  extending 
back  from  the  same  southwardly,  on  a  parallel  with  Wood  street, 
eighty-eight  feet. 

The  plaintiff  below  claimed  under  a  deed  of  conveyance  bearing 
date  the  19th  of  July  1815,  from  George  Watson,  in  whom  it  was 
admitted  by  both  parties,  that  the  right  and  title  vested  at  the  time 
of  making  the  deed  to  her.  The  property  conveyed  by  this  deed  is 
described  in  the  following  terms  :  "  a  certain  lot  or  piece  of  ground, 
situate  in  the  borough  of  Pittsburgh  aforesaid  (being  part  of  the  lot 
marked  in  the  plan  of  said  borough  No.  351),  bounded  and  described 
as  follows  :  to  wit,  beginning  on  Diamond  alley,  at  the  distance  of 
thirty-two  feet  westwardly  from  the  corner  of  lot  No.  352,  and  run- 
ning by  Diamond  alley  westwardly  about  fourteen  feet  to  &  four  feet 
alley,  thence  by  the  same  southwardly  a  parallel  line  with  Wood 
street  eighty-eight  feet;  thence  eastwardly  a  parallel  line  with 
Diamond  alley  about  fourteen  feet ;  and  thence  northwardly  a  par- 
allel line  with  Wood  street  eighty-eight  feet,  to  the  place  of  begin. 


36  SUPREME  COURT  [Pittsburgh, 

[Shepherd  v.  Watson.] 

ning ;  together  with  all  the  buildings  and  improvements  thereon ; 
and  together  with  the  free  use  and  privilege  of  the  said  four  feet 
alley,  also  the  buildings  extending  over  the  same." 

The  plaintiff  in  error  claimed  a  right  to  this  four  feet  alley  in  right 
of  his  wife,  who  was  a  daughter  of  the  defendant  in  error,  by  virtue 
of  a  deed  of  conveyance,  dated  the  28th  of  February  1815,  from  the 
defendant  in  error  to  Jane  Watson,  the  wife  of  the  plaintiff  in  error. 
This  deed  was  made  in  consideration  of  one  dollar,  and  natural  love 
and  affection  ;  and  contains,  by  way  of  recital,  a  reference  to  the 
deed  of  conveyance  from  George  Watson  to  Rachel  Watson,  and  the 
same  description  of  the  lot  and  alley,  without  the  least  variation  ; 
and  then  conveys  in  fee  simple  to  the  wife  of  the  plaintiff  in  error  the 
lot  of  ground  and  use  of  the  alley,  describing  them  in  the  fol- 
lowing terms:  "all  the  aforesaid  part  of  lot  No.  351,  with  the 
buildings  and  improvements  thereon  ;  and  together  with  the  free  use 
and  privilege  of  the  said  four  feet  alley  and  the  buildings  extending 
over  the  same ;  and  together  with  all  and  singular,  the  rights,  liber- 
ties, privileges,  hereditaments  and  appurtenances  whatsoever  there- 
unto belonging,  or  in  any  way  appertaining." 

On  the  trial,  the  plaintiff  below  called  George  Watson,  the  original 
grantor,  as  a  witness,  who,  without  objection,  testified,  among  other 
things,  that  the  right  of  alley  terminated  at  the  gateway  into  Shep- 
herd's yard,  immediately  in  the  rear  of  the  house,  which  was  lar 
short  of  the  depth  of  the  lot  and  the  eighty-eight  feet.  And  that  no 
alley  was  laid  out  or  right  of  way  granted,  except  to  the  extent  of 
the  buildings ;  and  that  beyond  the  house  no  alley  was  used,  except 
by  the  passing^  of  one  neighbour  into  the  dwelling  house  of  another. 

Joseph  Oliver,  another  witness  for  the  plaintiff  below,  testified  that 
there  were  buildings  on  the  back  part  of  the  lot,  and  a  passage  all 
the  way  back. 

Jacob  Houp,  a  witness,  produced  on  the  part  of  the  defendant 
below,  among  other  things,  testified,  that  there  was  a  workshop  on 
the  back  part  of  Shepherd's  lot,  and  that  Shepherd  had  been  using 
the  alley  all  the  way  back. 

The  defendant  below  also  offered  to  prove,  by  James  M.  Riddle, 
the  scrivener  of,  and  subscribing  witness  to  the  deed  of  conveyance 
from  Rachel  Watson  to  the  wife  of  the  plaintiff  in  error,  that  it  was 
the  express  understanding  and  agreement  of  the  parties  at  the  time 
of  the  execution  of  the  deed,  that  the  four  feet  alley  extended  back 
the  whole  depth  of  the  lot  (eighty-eight  feet),  and  that  the  grantee 
was  to  enjoy  it  to  that  extent.  This  testimony  was  objected  to  by 
the  counsel  for  the  plaintiff  below,  and  overruled  by  the  court,  and 
a  bill  of  exception  taken  and  signed,  which  is  the  ground  of  the 
becond  error  assigned,  and  will  be  disposed  of  first. 

Although  it  has  been  said  that  parol  evidence  may  be  admitted  to 
explain  a  will,  when  doubtful,  but  not  to  contradict  it,  2  Ves.  216, 
or,  in  favour  of  the  legal  operation  of  a  will  when  it  would  be  con- 
sidered inadmissible  if  offered  against  it,  Taylor  v.  Taylor,  1  Atk.  387, 


Sept.  1832.]  OF  PENNSYLVANIA.  37 

[Shepherd  v.  Watson.] 

yet  I  take  it  to  be  a  general  rule,  well  established,  that  parol  evi- 
dence shall  not  be  admitted  to  explain  a  writing,  when  the  meaning 
is  plain,  and  free  from  doubt.  2  Stra.  794 ;  3  Wils.  276,  277 ; 
4  Comyn's  Dig.  100,  101  ;  2  Stra.  1261.  Nor  yet  to  contradict, 
alter,  add  to,  or  diminish  it.  I  Doll  426,  340  ;  3  Serg.  $>  Rawle  309. 
The  deeds  in  the  present  case,  by  which  the  right  to  use  the  alley 
is  granted,  are  couched  in  terms,  both  as  to  the  granting  of  the  use 
of  the  alley,  and  the  width  and  extent  of  it,  that  are  perfectly  intelli- 
gible, plain  and  unambiguous  ;  and  being  so,  1  am  inclined  to  think 
that  the  evidence  offered  was  not  competent,  and,  therefore,  properly 
rejected. 

The  only  other  error  assigned,  and  which  is  the  one  chiefly  relied 
on  by  the  counsel  for  the  plaintiff  in  error,  is  to  the  charge  of  the 
court;  in  which  they  told  the  jury,  "  that  if  from  the  facts  testified  to 
by  the  witnesses,  taken  in  connexion  with  Mr  Watson's  testimony, 
with  regard  to  the  use  of  the  passage,  they  were  satisfied  that  it  was 
the  original  intention  of  the  grantor  of  the  right  of  way,  that  it  should 
extend  no  further  than  to  give  to  the  grantee  an  entrance  into  his 
premises,  that  then  the  plaintiff  was  entitled  to  their  verdict." 

Now  it  is  evident,  that  no  such  original  intention  of  the  grantor  is 
manifested  by  the  terms  or  language  of  his  deed.  On  the  contrary, 
the  lot  granted  thereby  is  described  as  bounded  by  the  alley  on  the 
western  side  thereof  to  its  utmost  extent  in  depth  from  Diamond  alley, 
that  is,  eighty-eight  feet.  The  words  in  this  part  of  the  description 
are,  "running  by  Diamond  alley  westwardly  about  fourteen  feet  to 
a  four  feet  alley,  thence  by  the  same  southwardly  a  parallel  line  with 
Wood  street  eighty-eight  feet."  The  words  are  not  "  thence  by  the 
same,  for  instance,  thirty  feet,  and  next  by  ground  of  Jl.  B.  fifty-four 
feet,  in  all  eighty-eight  feet,"  as  it  ought  and  no  doubt  would 
have  been  if  such  had  been  the  fact,  and  the  agreement  and  under- 
standing of  the  parties  at  the  time.  Or  if  it  had  been  described 
more  loosely,  thus,  "  thence  by  the  same  and  ground  of  A.  B.  eighty 
feet,"  it  would  have  shown  that  the  four  feet  alley  was  not  the 
boundary  of  the  lot  granted  throughout  upon  that  side  ;  and  because 
it  would  have  been  doubtful  in  such  a  case,  from  the  terms  of  the 
deed,  how  far  the  alley  extended  or  was  intended  to  be  granted,  it 
might  perhaps  have  been  proper  to  have  introduced  parol  evidence 
of  what  was  originally  agreed  on  in  this  respect,  and  of  the  extent 
to  which  the  alley  had  been  laid  out,  opened  and  used  on  the  ground. 
Since  then  the  four  feet  alley  is  made  expressly  a  boundary  to  the 
full  extent  of  the  eighty-eight  feet  or  depth  of  the  lot,  it  is  perfectly 
clear  from  the  terms  of  the  deeds  that  the  free  use  and  privilege  of  it 
is  expressly  granted  to  the  same  extent,  without  qualification  or  re- 
striction, to  the  wife  of  the  plaintiff  in  error.  The  rule  then  which 
I  have  already  noticed,  that  parol  evidence  shall  not  be  admitted  to 
contradict,  alter,  add  to  or  diminish  a  written  instrument,  would 
have  excluded  the  testimony  of  George  Watson,  which  I  have  recited, 
if  it  had  been  objected  to.  When  we  reflect  on  the  great  uncertainty 


38  SUPREME  COURT  [Pittsburgh, 

[Shepherd  v.  Watson.] 

of  parol,  and  the  comparative  certainty  of  written  testimony,  the 
impropriety  of  substituting  the  former  for  the  latter,  and  the  gross 
injustice  that  would  inevitably  result  from  it,  make  it  highly  neces- 
sary that  this  rule  should  never  be  overlooked,  nor  yet  departed  from, 
except  in  cases  of  palpable  fraud  or  plain  mistake,  when,  in  order  to 
prevent  injustice,  parol  evidence  has  ever  been  admitted.  Hence, 
although  the  evidence  was  admitted  without  objection,  I  think  that 
the  court  were  wrong  in  telling  the  jury  that  the  original  intention 
of  the  grantor  of  the  right  as  to  the  extent  of  the  alley  was  to  govern, 
and  that  that  intention  was  to  be  collected  from  the  facts  testified  to 
by  the  witnesses,  taken  in  connection  with  it.  This  was  in  effect 
directing  them,  that  if  they  believed  the  witnesses,  their  testimony 
ought  to  overrule  and  control  the  deed,  and  the  plain  intention  of 
the  grantor  most  clearly  expressed  in  it,  which  ought  not  to  be 
allowed  unless  in  cases  of  fraud  or  mistake,  neither  of  which  is  pre- 
tended here.  The  intention  of  the  grantor,  instead  of  being  collected 
and  ascertained  from  the  parol  evidence  by  the  jury,  ought  to  have 
been  ascertained  by  the  court  from  the  deed  itself,  and  given  in 
charge  to  the  jury,  with  a  construction  in  conformity  to  it.  The 
court  ought  to  have  instructed  the  jury  as  a  matter  of  law,  that  the 
four  feet  alley,  and  the  use  of  it,  were  granted  by  the  deeds  to  the 
full  extent  of  the  eighty-eight  feet  or  depth  of  the  lot.  The  parol 
evidence  of  the  manner  and  the  extent  to  which  the  alley  had  been 
used  by  the  grantees  can  not,  and  ought  not  to  have  been  admitted 
for  the  purpose  of  producing  any  effect  whatever  in  controlling  or 
restricting  the  plain  and  express  terms  of  the  grant. 
Judgment  reversed,  and  venire  de  novo  awarded. 


Sept.  1832.]  OF  PENNSYLVANIA.  39 


Bartram  against  M'Kee,  Clark  &  Co. 

In  an  action  brought  in  the  common  pleas  to  recover  the  price  of  carrying  goods, 
the  plaintiffs  recovered  a  verdict  and  judgment  for  a  sum  less  than  100  dollars,,  but 
which  was  reduced  below  that  sum  by  a  defence,  on  the  ground  of  injury  done  to 
the  goods  carried ;  it  was  held,  that  the  plaintiff  was  entitled  to  recover  costs,  although 
no  affidavit  was  filed  that  his  claim  exceeded  one  hundred  dollars. 

ERROR  to  Mleghany  county. 

James  A,  Bartram  brought  this  action  against  M'Kee,  Clark  fy 
Co.  to  recover  300  dollars  for  carrying  goods  on  the  Ohio  river. 
The  defence  was,  that  the  goods  were  injured  while  in  the  possess- 
ion of  the  plaintiff.  The  jury  rendered  a  verdict  for  99  dollars  and 
99  cents,  upon  which  the  court  rendered  a  judgment  with  costs. 
To  reverse  the  judgment  as  to  costs,  this  writ  of  error  was  taken. 

W.  W.  Fetterman,  for  plaintiff  in  error. 
Burke,  contra. 

The  opinion  of  the  court  was  delivered  by 

ROGERS,  J. — If  suit  be  brought  in  court  for  a  debt,  or  demand, 
made  cognizable  by  a  justice  of  the  peace,  the  plaintiff  is  debarred 
from  costs,  unless  before  issuing  the  original  writ,  he  files  in  the 
office  of  the  prothonotary  his  oath  or  affirmation,  that  he  verily  be- 
lieves the  debt  due  on  damages  sustained,  exceeds  the  sum  of  one 
hundred  dollars.  Notwithstanding  the  words  of  the  writ,  it  has 
been  held  in  repeated  cases,  that  when  the  verdict  has  been  ren- 
dered, below  100  dollars  by  set  pf£  the  plaintiff  was  entitled  to  his 
costs.  Grant  et  al.  v.  Wallace,  16  Serg.  $•  Rawle  253  ;  2  Dall  75; 
Sadler  v.  Slobaugh,  3  Serg.  fy  Rawle  389;  Spear  v.  Jamison,  2  Serg. 
4-  Rawle  531.  This  is  not  denied,  but  it  is  contended  that  this  is 
not  a  set  off,  but  an  equitable  defence. 

Spear  v.  Jamison  in  its  circumstances  resembles  this  case.  The 
demand  was  for  work,  labour  and  services,  principally  done,  in  mak- 
ing coal  for  the  defendant's  iron  works.  The  defendant  claimed  a 
deduction,  among  other  matters,  on  account  of  the  badness  of  coal 
in  consequence  of  which,  as  he  said,  his  iron  works  were  stopped  for  a 
great  length  of  time.  It  was  objected,  that  this  defence  might  be 
made  under  the  plea  of  non  assumpsit,  and  that  it  was  not  a  set  off. 
The  court  allowed  the  plaintiff  his  costs,  although  it  must  be  admitted 
that  they  did  not  expressly  decide  on  the  validity  of  this  objection ; 
but  the  court  of  common  pleas,  having  decided  that  the  plaintiff's 
demand  was  reduced  by  set  off,  it  was  not  re-examinable  here. 
This  court  would  intend,  in  the  absence  of  all  proof  to  the  con- 


40  SUPREME  COURT  [Pittsburgh, 

[Bartram  v.  M'Kee,  Clark  &,  Co.] 

trary,  that  there  was  a  set  off.     If  necessary,  the  plaintiff  might 
avail  himself  of  the  same  position  here.     This  matter  has  been  ex- 
amined by  the  court  of  common  pleas,  who  can  investigate  the  facts; 
and  it  is  impossible  for  us,  from  any  thing  which  appears  on  the  re- 
cord, to  say  there  was  error.     But  although  this  is  not  strictly  a  case 
of  set  off,  yet  the  defence  is  collateral  to  the  action,  and  seems  to 
me  to  come  within  the  exception  to  the  letter  of  the  act.     As  in  Sad- 
ler v.  Slobaugh,  the  defence  was  not  for  any  certain  sum  of  money ; 
the  verdict  might  have  been  for  more  than  100  dollars,  but  whe- 
ther he  should  receive  more  or  less  than  100  dollars,  would  de- 
pend on  the  opinion  of  those  who  should  try  the  cause.     As  then, 
the  amount  of  the  injury  to  the  goods  was  uncertain,  and  the  de- 
duction dependent  on  opinion  ;  it  would  be  imposing  a  hardship,  not 
within  the  extent  of  the  evil,  either  to  make  it  the  duty  to  make  the 
allowance,  so  as  to  reduce  the  claim  within  the  jurisdiction  of  the 
justice,  or  to  make  an  affidavit  which  would  imply  a  doubt  of  its 
justice.     If  suit  had  been  brought  before  a  justice,  for  the  freight, 
or  in  court,  the  defendant  might  decline  making  any  defence,  and 
bring  a  suit  for   the  injury  which  he  had  sustained.     He  might 
allege,  and  truly  too,   that  the  injury  was  greater  than  100  dol- 
lars, or  the  credit  which  the  plaintiff  had  thought  proper  to  allow. 
The  consequence  of  which  would  be,  that  the  jurisdiction  of  the  jus- 
tice would  fail ;  or  the  plaintiff,  after  allowing  for  the  injury  which 
he  supposed  the  goods  had  sustained,  would  have  found  himself 
exposed  to  a  suit  on  the  part  of  the  plaintiff.     I  think  it  plain,  that 
a  recovery  of  freight  would  not  bar  a  suit  for  the  charge  the  plain- 
tiff had  suffered,  as  otherwise  it  might  operate  very  much  to  the 
injury  of  the  plaintiff,  who  would  recover  a  verdict  only,  although 
his   injury  may   have  been  much  greater   than  the  whole  value 
of  the  freight.     In  Sadler  v.  Slobaugh,  where  the  plaintiff  brought 
debt  in   the    common   pleas,   on   a  single  bill,    for    100  dollars, 
due  on  the  sale  of  a  horse,  and.  where  the  demand  was  reduced 
because  of  a  warranty  of  the  horse,  who   proved  unsound,  it  is 
put  on   these  grounds.     It  was  there,  as  in  this  case,  a  defence 
collateral  to  the  suit,  and  not  a  set  off,  nor  was  he  compelled  to 
make  the  defence.     The  plaintiff  could  not  make  oath  of  his  be- 
lief of  what  would  be  the  result.     It  would  be  unreasonable  to  re- 
quire it  of  him — the  result  depended  entirely  on  the  fact  whether  the 
defendant  chose  to  make  defence  in  that  action,  or  preferred  to  bring 
a  separate  suit  for  the  injury  which  he  had  sustained. 
Judgment  for  the  plain  tiff  for  costs. 


Sept.  1832.]  OF  PENNSYLVANIA.  41 


Brown  against  Campbell. 

An  execution  issued  and  levied  upon  land  preserves  the  lien  of  the  judgment  as  to 
the  land  levied  only  ;  if  no  scire  facias  be  issued  within  five  years,  the  lien  as  to  all 
other  lands  is  gone. 

THIS  was  an  appeal  from  the  decision  of  the  circuit  court  of  In- 
diana  county,  which  appropriated  the  proceeds  of  the  sale  of  the  real 
estate  of  the  defendant  in  error.  And  the  only  question  which  arose 
was,  whether  the  issuing  of  a.fi.  fa.  and  a  levy  upon  a  particular  tract 
of  land,  preserved  the  lien  of  the  judgment  upon  other  lands  beyond 
the  period  of  five  years,  without  a  scire  facias. 

Watts  and  Alexander,  for  appellants,  contended, 

That,  according  to  the  existing  laws  of  the  state,  before  the  passage 
of  the  act  of  26th  March  1827,  entitled  "  an  act  limiting  the  time 
during  which  judgments  shall  continue  liens  on  real  estate,  and  suits 
may  be  brought  against  sureties  of  public  officers,"  it  was  understood 
that  issuing  an  execution  and  levying  on  lands,  which  was  done  in 
this  case,  was  such  a  continuance  of  the  process  of  the  law,  as  to 
render  it  unnecessary  to  revive  the  judgment  by  sci.  fa.  ;  and  that 
the  terms  "existing  laws,"  in  the  act  of  the  23d  March  1829,  a  supple- 
ment to  the  foregoing  act,  had  a  reference  to  the  case  of  Young  v. 
Taylor,  2  Sinn.  227,  so  far  as  it  was  understood  to  be  a  declaration 
that  issuing  a^i.  fa.  preserved  the  lien  of  the  judgment. 

By  the  act  of  1829,  one  year  from  its  passage  is  allowed  for  the 
purpose  of  having  the  judgments  so  situated  revived,  and  the  liens 
continued  during  that  year. 

In  this  case  the  judgment  was  revived  within  that  year;  that  is 
to  say,  on  the  29th  of  December  1829. 

Per  Curiam. — The  argument,  that  the  legislature  meant  to  give 
permanency  to  what  had  been  already  done  by  the  courts,  though 
deemed  to  have  been  a  misconstruction  in  the  first  instance,  is  plau- 
sible, but  unsound.  By  the  words  "  then  existing  laws,"  was 
doubtless  meant,  not  only  the  text  of  the  preceding  acts,  but  the 
qualification  it  had  received  in  practice.  But  though  the  legislature 
did  not  mean  to  interfere  with  any  established  practice  as  regarded 
the  past,  they  evidently  did  not  mean  to  give  it  the  fixed  form  of 
positive  enactment.  To  have  done  so,  would  have  been  deliberately 
to  render  the  consequences  of  what  they  deemed  error,  irretrievable  : 
an  intent  not  to  be  imputed  to  them.  They  intended  to  leave  the 
construction  as  to  by-gone  transactions  exactly  where  they  found  it ; 
in  the  province  of  the  courts.  But  even  supposing  the  words  were 
F 


42  SUPREME  COURT  [Pitttburgh, 

[Brown  v.  Campbell.] 

intended  to  give  a  statutory  sanction  to  what  had  before  been  a 
matter  of  interpretation  ;  still,  the  courts  are  to  determine  what  were 
the  existing  laws,  in  the  sense  supposed,  at  the  passing  of  the  act ; 
and  it  has  already  been  decided,  in  a  case  not  yet  reported,  that  what- 
ever may  have  been  the  interpretation  put  on  Young  v.  Taylor,  t!ie 
practice  of  perpetuating  a  lien  by  an  execution  levied  on  any  thing 
but  the  land  itself,  has  never  received  the  sanction  of  judicial  deci- 
sion ;  and  this  leads  to  exactly  the  same  consequences,  whether  the 
construction  contended  for  be  put  on  the  act  of  1829,  or  not.  Waving, 
then,  all  consideration  of  the  regularity  of  this  appeal,  it  is  sufficient 
to  affirm  the  position,  that  a  specific  levy  of  land  continues  the  lien 
of  a  judgment  only  as  to  the  land  levied. 
Decree  of  the  circuit  court  and  common  pleas  affirmed. 


White  against  Willard. 

The  omission  of  the  treasurer  to  file  the  bond,  given  for  the  surplus  purchase 
money  of  a  tract  of  land  sold  for  taxes,  does  not  vitiate  the  purchaser's  title. 

ERROR  to  the  common  pleas  of  JHercer  county. 

Ejectment.  Crawford  White  purchased  the  land  in  dispute  at  a 
treasurer's  sale  for  taxes  in  1816,  and  then  gave  a  bond  for  the  surplus 
purchase  money,  beyond  the  amount  necessary  to  pay  the  taxes  and 
costs,  and  received  his  deed.  The  bond  was  mislaid  by  the  treasurer, 
and  not  found  until  1823,  when  he  filed  it  in  the  proper  office.  The 
original  title  was  in  Peter  Willard  the  defendant,  whose  counsel 
contended  that  the  omission  to  file  the  bond  was  fatal  to  the  plain- 
tiffs title;  and  of  that  opinion  was  the  court  below,  by  whose  direc- 
tion a  verdict  and  judgment  were  rendered  for  the  defendant.  This 
was  the  only  point  argued  here. 

Per  Curiam. — The  point  contested  here  was  certainly  not  decided 
in  Sutton  v.  JVe/son,  10  Serg.  <£•  Rawle  238,  nor  an  opinion  on  it  in- 
tended to  be  intimated.  The  word  "  filing^'  was  carelessly  used  for 
delivering,  on  a  supposition  that  the  one  would  follow  the  other  as  a 
matter  of  course ;  but  it  was  not  supposed  to  be  the  business  of  the 
purchaser  to  attend  to  the  duty  of  the  officer,  further  than  to  see  that 
he  had  the  bond ;  or  to  make  him  answerable  for  negligence  not  his 
own.  For  whose  benefit  is  the  officer  to  perform  this  particular 
duty?  Certainly  for  that  of  the  former  owner,  who  alone  has 
remedy  against  him  for  a  breach  of  It ;  and  this  shows  that  the 
purchaser  is  not  the  party  to  suffer  by  the  officer's  negligence.  If 
then  the  purchaser  has  performed  his  part  by  delivering  the  bond, 


Sept.  1832.]  OF  PENNSYLVANIA.  43 

[White  v.  Willard.] 

he  is  not  chargeable  with  negligence  in  remaining  ignorant  of  the 
officer's  omission  for  seven  or  any  other  number  of  years.  But  grant- 
ing him  to  have  been  aware  of  the  fact,  yet  not  being  a  trustee  for 
any  one,  it  was  not  his  business  to  interfere,  which  is  still  more  con- 
clusively shown  by  his  total  inability  to  control  the  officer's  actions. 
There  was  error  therefore  in  charging  that  the  omission  of  the  trea- 
surer was  fatal  to  the  title. 

Judgment  reversed,  and  a  venire  de  novo  awarded. 


Ross  et  al.  against  Soles. 

In  a  suit  before  a  justice  of  the  peace,  judgment  was  rendered  for  plaintiff  for 
40  dollars,  from  which  the  defendant  appealed  to  the  common  pleas,  where  the 
cause  was  arbitrated,  and  an  award  for  the  defendant,  from  which  the  plaintiff  ap- 
pealed. The  cause  was  afterwards  tried  by  jury,  and  a  verdict  and  judgment  for  the 
plaintiff  for  1.7  dollars,  the  defendant  having  given  other  evidence  than  was  given  to 
the  justice.  Held:  That  the  defendants  were  liable  to  pay  the  costs  which  accrued 
before  the  -justice,  and  to  refund  to  the  plaintiff  the  costs  which  he  had  paid  on  the 
appeal  from  the  award  of  arbitrators,  and  that  each  party  should  pay  his  own  costs 
which  accrued  subsequently  to  the  award. 

ERROR  to  the  common  pleas  of  Jllleghany  county. 
This  was  a  question  of  costs,  and  the  facts  which  gave  rise  to  it 
are  fully  stated  in  the  opinion  of  the  court. 

Burke,  for  plaintiff.in  error. 
Fetterman,  contra. 

The  opinion  of  the  court  was  delivered  by 

KENNEDY,  J. — The  defendant  in  error  sued  the  plaintiffs  in  error 
before  a  justice  of  the  peace  of  Alleghany  county,  who  gave  judg- 
ment against  them  for  40  dollars  debt,  and  four  dollars  and  fifty 
cents  costs.  From  this  judgment,  the  plaintiffs  in  error  appealed  to 
the  court  of  common  pleas,  where  the  cause  was  referred,  under  a 
rule  entered  by  the  plaintiffs  in  error,  to  arbitrators  chosen  agreeably 
to  the  provisions  of  the  act  regulating  arbitrations  passed  in  1810. 
The  arbitrators  made  an  award  in  favour  of  the  plaintiffs  in  error, 
and  that  the  defendant  in  error  pay  the  costs  of  the  suit.  The  de- 
fendant in  error  appealed  from  this  award  to  the  court,  where  the 
cause  was  tried  by  a  jury,  and  a  verdict  given  in  his  favour  for  17 
dollars,  upon  which  the  court  below  adjudged  that  each  party  should 
pay  his  own  costs  up  to  the  time  of  the  appeal  taken  from  the 
award  of  the  arbitrators,  but  that  the  defendant  in  error,  who  was 
the  plaintiff  in  the  court  below,  should  recover  back  from  the  plain- 
tiffs in  error  their  bill  of  costs,  which  he  paid,  for  the  purpose  of  tak- 


44  SUPREME  COURT  [Pittsburgh, 

[Rosa  et  al.  v.  Soles.] 

ing  his  appeal  from  the  award  of  the  arbitrators,  and  further,  that  he 
likewise  recover  all  his  costs  incurred  subsequently  to  that  appeal. 

This  case,  I  think,  falls  clearly  within  one  of  the  provisions  con- 
tained in  the  fourth  section  of  the  act  of  the  20th  of  March  1810, 
which  is  in  these  words,  "  but  on  the  reversal  or  abatement  of  the 
amount  of  a  judgment  on  an  appeal,  the  defendant,  if  the  appellant, 
shall  be  allowed  his  daily  pay,  counsel  fee  and  costs,  only  in  case  he 
produces  no  evidence  before  the  court  other  than  that  which  he  ex- 
hibited before  the  justice  or  referees."     Now  in  this  case  the  plain- 
tiffs in  error  were  the  defendants  before  the  justice,  and  became  the 
appellants  from  his  judgment  to  the  court  of  common  pleas;  where 
finally,  after  producing  other  evidence  than  that  which  they  exhibited 
before  the  justice,  they  obtained  an  abatement  of  the  amount  of  the 
judgment  of  the  justice.     But  then  they  gave  new  testimony  which, 
according  to  the  express  provision  of  the  act  already  referred  to, 
deprived  them  of  their  right  to  recover  costs.     The  payment  and  re- 
covery of  costs  in  this  case  must  be  regulated  and  governed  by  the 
act,  a  part  of  the  fourth  section  of  which  has  been  recited,  and  not 
by  the  act  regulating  arbitrations  of  the  same  date.     This  suit  was 
commenced  before  a  justice  of  the  peace,  under  the  authority  and 
provisions  of  the  first  of  these  acts  ;  and  wherever  it  expressly  pro- 
vides for  and  directs  by  which  of  the  parties  the  costs  shall  be  paid, 
or  in  what  proportion  each  shall  contribute  to  the  payment  of  them, 
and  which  of  them  shall  recover  his  costs  or  any  part  of  them  from 
the  other,  upon  the  final  determination  of  the  case,  after  an  appeal 
taken  by  either  party  to  the  court  of  common  pleas,  it  must  be  re- 
garded and  adopted  as  the  rule  of  decision  ;  notwithstanding  there 
may  have  been  an  intermediate  decision  of  the  cause  by  arbitrators 
chosen  under  tjie  latter  act.     It  is  possible,  however,  that  in  some 
cases  of  appeals  from  the  judgments  of  justices  of  the  peace,  al* 
though  none  occurs  to  my  mind  now,  that  this  latter  act  may  be 
permitted  to  come  in  for  the  purpose  of  supplying  an  entire  omission 
of  the  former  as  to  costs. 

If  the  defendants  below  had  not  given  other  evidence  in  court 
than  that  which  was  exhibited  before  the  justice,  they  would  have 
been  entitled  to  have  recovered  costs,  inasmuch  as  they  succeeded 
in  their  appeal  finally,  by  obtaining  an  abatement  of  the  amount  of 
the  justice's  judgment  against  them  :  but  having  given  new  evi- 
dence on  the  appeal,  their  right  to  recover  costs  is  thereby  gone,  and 
each  party  in  such  case,  according  to  the  first  of  these  two  acts,  and 
the  decisions  of  this  court  upon  it,  must  pay  his  own  costs,  from  the 
time  of  the  appeal  from  the  judgment  of  the  justice  of  the  peace  to 
the  final  end  and  determination  of  the  suit. 

The  plaintiffs  in  error  must  pay  the  costs  upon  the  judgment  that 
was  rendered  against  them  by  the  justice ;  but  each  party  must  pay 
his  own  part  of  all  the  subsequent  accruing  costs  in  the  suit.  The 
plaintiffs  in  error  entered  the  rule  for  the  arbitration  in  the  court 
below,  upon  which  the  arbitrators  were  appointed,  who  icported 


Sept.  1832.]  OF  PENNSYLVANIA.  45 

[Ross  et  al.  v.  Soles.] 

against  the  defendant  in  error,  which  caused  him  to  appeal ;  and 
before  he  could  do  that,  he  was  compelled  to  pay  the  bill  of  costs  of 
the  plaintiffs  in  error.  This  he  is  entitled  to  recover  back,  otherwise 
it  would  be  making  him  pay  a  part  of  the  costs  of  the  plaintiffs  in 
error,  which  accrued  after  the  appeal  from  the  justice's  judgment, 
instead  of  settling  the  matter  upon  the  principle  that  when  all  shall 
have  been  paid,  each  party  shall  have  paid  his  own  costs  and  no 
more,  which  accrued  subsequently  to  the  appeal  from  the  justice. 
It  is  perfectly  just  that  the  plaintiffs  in  error  should  refund  their  bill 
of  costs  to  the  defendant  in  error,  who  was  compelled  to  pay  them 
that  he  might  get  an  appeal,  in  order  to  relieve  himself  against  the 
award  of  the  arbitrators,  which  was  found  afterwards  to  be  unjust, 
and  therefore  was  reversed,  because  the  plaintiffs  in  error  were  the 
cause  of  this  award. 

This  case  falls  directly  within  the  principle  decided  by  this  court 
in  Honiter  v.  Brown,  1  Penn.  Rep.  477,  478,  where  Honiter  was  sued 
by  Brown  before  a  justice  of  the  peace,  who  gave  a  judgment  against 
Honiter  for  80  dollars,  from  which  he  appealed  to  the  court  of  com- 
mon pleas,  where  the  cause  was  referred  to  arbitrators,  under  the 
act  of  1810  before  mentioned.  The  arbitrators  reported  in  favour  of 
Brown  90  dollars,  from  which  Honiter  appealed  a  second  time;  and 
upon  a  trial  afterwards  in  court,  where  he  gave  new  evidence,  not 
exhibited  before  the  justice,  obtained  a  verdict  in  his  favour,  upon 
which  the  court  below  rendered  judgment,  but  decided  that  he  was 
not  entitled  to  recover  back  Brown's  costs,  which  he  was  compelled 
to  pay  in  order  to  obtain  his  appeal  from  the  award  of  the  arbitrators: 
this  court  reversed  the  judgment  of  the  court  below  on  this  point, 
and  decided  that  Honiler  was  entitled  to  recover  back  the  costs  of 
Brown,  which  he  had  so  paid. 

The  judgment  of  the  court  below  in  this  cause  is  reversed  as  to 
costs ;  and  judgment  that  the  plaintiffs  in  error  pay  the  costs  on  the 
judgment  of  the  justice;  also  that  they  pay  back  their  bill  of  costs 
paid  by  the  defendant  in  error  to  obtain  his  appeal  from  the  award  of 
the  arbitrators  ;  and  that  each  party  pay  his  own  part  of  all  the  re- 
maining costs. 


46  SUPREME  COURT  [Pittsburgh, 


Brentlinger  against  Hutchinson  et  al. 

Whenever  a  question  of  abandonment  of  title,  consisting  of  an  actual  settlement, 
arises  from  a  lapse  of  time  less  than  seven  years,  accompanied  by  circumstances 
from  which  it  might  be  inferred  that  the  party  intended  to  abandon,  it  is  a  mixed 
question  of  fact  and  law,  to  be  submitted  to  the  decision  of  the  jury. 

But  when  the  question  arises  from  mere  lapse  of  time,  it  is  a  question  of  law,  to 
be  decided  by  the  court,  without  regard  to  the  intention  of  the  party  ;  aud  if  it  ex- 
ceeds seven  years,  it  is  a  conclusive  abandonment  in  law. 

WRIT  of  error  to  the  common  pleas  of  Indiana  county. 

Ejectment  for  a  tract  of  land  by  William  Hutchinson  and  others, 
against  Jacob  Brentlinger.  The  facts  of  the  case,  which  gave  rise 
to  the  only  question  of  law  which  was  argued  and  determined,  were 
thus  accurately  stated  by  his  honour,  who  delivered  the  opinion  of 
the  court. 

The  defendants  in  error  were  the  plaintiffs  below,  and  claimed  the 
land  in  dispute  under  a  settlement  right,  and  as  the  heirs  of  David 
Hutchinson,  their  father.  A  certain  Thomas  Tale,  about  1800  or 
1801,  built  a  house  upon  the  land,  and  moved  into  it  with  his  family, 
where  he  resided,  clearing  some  of  the  land,  and  raising  grain.  He 
cleared  four  or  five  acres  in  all,  up  to  1804,  when  he  sold  the  land 
to  David  Hutchinson,  the  father  of  the  defendants  in  error,  and  a  cer- 
tain JW  Govern,  and  gave  up  the  possession  of  it  to  them.  They 
moved  on  to  the  land  with  their  respective  families ;  built  an  addi- 
tional cabin  upon  it,  and  continued  to  reside  there  about  one  year, 
when  «M'  Govern  sold  his  interest  in  the  land  to  Hutchinson,  and  left 
it.  Hutchinson  continued  to  live  there  till  about  the  year  1810,  when 
he  removed  from  it  about  five  or  six  miles  off,  for  the  purpose  of 
teaching  school.  He  left  no  grain  growing  on  it ;  but  left  in  the 
house  where  he  had  resided  a  loom,  a  couple  of  stools  and  a  slab 
table,  and  fastened  the  door  of  the  house.  The  house  and  land 
remained  unoccupied  and  vacant  for  about  a  year,  when.#dam  Sides 
took  possession  of  it,  under  a  claim  which  he  pretended  to  have  to  it ; 
sowed  grain  upon  it,  which  he  reaped  the  next.  In  1811  Catherine 
Hutchinson,  the  wife  of  David  Hutchinson,  and  her  son,  William  Hut- 
chinson, came  upon  the  land,  and  were  indicted  by  Sides  for  a  forci- 
ble entry  and  detainer.  Catherine  Hutchinson,  on  trial,  was  found 
guilty,  but  no  sentence  or  order  of  the  court  was  ever  made  or  im- 
posed upon  her.  The  son  was  acquitted.  They  left  the  land  then, 
and  some  evidence  was  given  that  on  quitting  it,  Hutchinson  said  he 
would  try  his  right  to  it  at  law.  From  this  time  until  about  1826 
or  1827,  it  did  not  appear  that  any  body  resided  upon  the  land,  or 
even  occupied  it.  In  one  of  these  years  the  plaintiff  in  error  leased 


Sept.  1832.]  OF  PENNSYLVANIA.  47 

[Brentlinger  v.  Hutchinson.] 

it  from  James  Findley,  a  son,  and  one  of  the  administrators  of  George 
Findley,  and  under  his  lease  took  possession  of  it,  and  continued  to 
reside  upon  it  in  1829,  when  this  suit  was  commenced  by  the  defend- 
ants in  error,  as  the  heirs  at  law  of  David  Hutchinson,  who  died  in 
the  year  preceding.  The  deceased,  when  he  removed  from  the 
land,  and  engaged  in  teaching  school,  in  1810,  was  very  poor,  and 
"  had  hard  scrabbling,"  as  one  witness  said,  "  to  get  along." 

The  defendant  below,  beside  his  possession,  which  he  relied  on, 
among  other  things,  gave  in  evidence  a  warrant  for  three  hundred 
acres  of  land,  adjoining  the  Laurel  Hill  and  Michael  Huffnagle, 
granted  to  David  Wilson,  and  bearing  date  the  17th  of  April  1786, 
upon  which  a  survey  was  made  the  Hth  of  August  1787,  contain- 
ing three  hundred  and  three  acres,  adjoining  George  Findley,  and 
returned  into  the  surveyor- general's  office  on  the  28th  of  March 
1794.  To  show,  however,  that  this  warrant  and  survey  had  been 
revoked  in  its  location  upon  the  land  in  dispute,  under  the  provisions 
of  the  first  and  second  sections  of  the  act  of  the  29th  of  March  1792, 
Purdon's  Dig.  527,  the  defendants  gave  in  evidence  a  certified  copy 
from  the  surveyor-general's  office,  of  the  certificate  of  John  Moore, 
the  then  deputy  surveyor  of  the  district,  dated  the  25th  of  April 
1794,  showing  that  unappropriated  land  was  not  to  be  had  for  this 
warrant ;  and  then  the  certificate  of  Daniel  Sroadhead,  the  surveyor- 
general,  directed  to  the  receiver-general,  and  dated  the  10th  of  May 
in  the  same  year,  showing  that  Daniel  Wilson,  the  warrantee,  was 
entitled  to  a  credit  in  the  land  office,  upon  the  faith  of  the  deputy 
surveyor's  certificate  for  the  amount  of  the  moneys  paid  by  him  for 
the  warrant.  The  defendant  below  objected  to  the  admission  of 
these  certificates  in  evidence  ;  the  court  overruled  the  objection,  to 
which  the  counsel  for  the  defendant  below  excepted,  and  a  bill  of 
exception  was  allowed  and  signed  by  the  court. 

The  defendant  below  also  gave  in  evidence  another  warrant,  dated 
the  19th  of  November  1808,  for  two  hundred  and  seventy-five  acres, 
interest  to  commence  from  the  1st  of  November  1794,  which  was 
granted  to  George  Findley,  and  a  survey  made  thereon  of  two  hun- 
dred and  ninety-nine  acres  and  sixty-four  perches,  the  20th  of  June 
1811.  It  was  also  testified  that  both  Sides  and  George  Findley 
claimed  the  land  at  one  time,  and  a  deed  of  conveyance  from  Sides 
to  the  administrators  of  Findley,  dated  the  9th  of  March  1816,  for 
the  land  in  dispute,  was  given  in  evidence.  It  did  not  appear  in 
evidence,  on  the  trial,  that  George  Findley  ever  had  any  settlement 
upon  the  land,  to  authorise  his  obtaining  a  warrant  for  it.  The  jury, 
after  receiving  the  charge  of  the  court  below,  returned  a  verdict  in 
favour  of  the  defendants  in  error,  upon  which  the  court  rendered  a 
judgment. 

Stannard,  for  plaintiff  in  error. 
White,  for  defendant  in  error. 


48  SUPREME  COURT  [Pittsburgh, 

[Brentlingor  v.  Hutchinson.] 

The  opinion  of  the  court  was  delivered  by 

KENNEDY,  J. — Seven  errors  have  been  assigned  by  the  platntiffin 
error,  none  of  which,  excepting  the  sixth,  are  considered  sustainable 
by  this  court.  Indeed,  the  sixth  is  the  only  one  that  was  pressed 
and  relied  on  by  his  counsel,  at  the  time  of  argument  here. 

The  sixth  error  is,  that  the  court  below,  in  their  charge  to  the 
jury,  directed  them  that  they  ought  not  to  presume  an  abandonment 
by  Hutchinson  of  his  settlement  right  to  the  land  in  dispute. 

From  1811,  the  time  when  the  wife  and  son  of  David  Hutchinson 
were  on  the  land  and  left  it  last,  until  the  commencement  of  this 
action  of  ejectment,  a  period  of  eighteen  years,  neither  he,  although 
he  continued  to  live  seventeen  years  of  that  time,  nor  his  heirs,  after 
his  death,  ever  made  the  least  effort,  that  we  have  heard  of,  to  re- 
cover or  take  the  possession  of  the  land  again.  The  only  excuse  or 
apology  that  has  been  offered  for  this  delay  and  lying  by  is,  that  he 
wished,  as  he  said,  when  he  left  the  land  last,  in  1811,  "  to  try  his 
right  at  law  to  it,"  and  that  no  person  took  actual  possession  of  it 
afterwards,  to  afford  him  the  opportunity  of  bringing  an  action  of 
ejectment,  until  Brentlinger,  the  plaintiff  in  error,  came  on  it.  But, 
it  must  be  recollected,  that  that  was  in  1826  or  1827,  at  least  one, 
if  not  two  years  before  Hutchinson's  death,  which  was  ample  time  for 
him  to  have  brought  his  suit  in,  if  he  had  intended  it.  Again,  if 
he  had  really  been  desirous  to  have  tried  his  right  at  law,  and  seeing 
that  no  one  took  possession  of,  or  occupied  the  land  in  any  way,  it 
would  have  been  more  safe,  as  well  as  more  wise,  for  him  to  have 
returned  to  the  land  with  his  family,  or,  otherwise,  to  have  got  a 
tenant  to  have  done  so,  and  to  have  entered  upon  and  held  the 
possession  of  it,  until  it  was  taken  from  him  by  process  of  law.  If 
he  had  done  so,  his  adversary,  if  disposed  to  contest  his  right,  must, 
in  that  case,  have  become  the  plainiiff,  and  made  Hutchinson  the 
defendant,  which,  as  every  one  knows,  is  a, very  material  advan- 
tage gained  in  action  of  ejectment.  And  if  being  thus  in  pos- 
session of  the  land,  his  adversary  had  declined  bringing  a  suit  for 
the  recovery  of  it,  he,  of  course,  would  have  held  it  without  the 
vexation,  trouble  and  costs  necessarily  attending  upon  a  suit  at 
law.  This  would  surely  have  been  the  utmost  that  he  could  have 
wished.  I  must,  therefore,  consider  the  circumstances  of  the  land 
lying  vacant  and  unoccupied  for  so  great  a  length  of  time  as  fifteen 
or  sixteen  years,  instead  of  making  in  favour  of  the  plaintiff  below, 
or  furnishing  the  least  excuse  for  lying  by,  and  not  resuming  the 
possession  of  it,  and  again  making  it  the  place  of  his  abode,  as  one 
of  the  strongest  reasons  that  could  be  well  'imagined,  for  inferring  an 
intentional  abandonment  on  the  part  of  David  Hutchinson. 

The  definition  of  a  settlement  upon  land,  is  given  in  the  act  of 
assembly  of  the  30th  of  December  1786,  which  has  been  considered 
nothing  more  than  declaratory  of  what  was  the  common  usage  and 
law  in  relation  to  it  before  that  time,  as  well  as  since.  CZorfc  v. 
Hutchinson,  3  Yeates  269.  It  is  thereby  declared,  "  that  by  a  settle- 


Sept.  1832.]  OF  PENNSYLVANIA.  49 

[Brentlipger  v.  Hutchinson.] 

ment,  shall  be  understood  an  actual  personal  resident  settlement,  with  a 
manifest  intention  of  making  it  a  place  of  abode,  and  the  means  of  sup- 
porting a  family,  and  continued  from  time  to  time,  unless  interrupted  by 
the  enemy,  or  by  going  into  the  military  service  of  the  country 
during  the  war."  Again,  by  the  act  of  the  22d  of  September  1794, 
it  is  enacted  that,  "  from  and  after  the  passing  of  this  act,  no  appli- 
cation shall  be  received  at  the  land  office,  for  any  lands  within  this 
commonwealth,  except  for  such  lands  whereon  a  settlement  has 
been  made,  or  hereafter  shall  be  made,  grain  raised,  and  a  person  or 
persons  residing  thereon"  It  appears  from  these  acts  of  the  legisla- 
ture, as  well  as  every  other  relating  to  the  same  subject,  that  conti- 
nuity of  possession,  and  personal  residence  of  and  upon  the  land,  are 
made  the  very  essence  of  a  settlement.  By  the  first  act  it  must  have 
been  continued  from  time  to  time,  unless  interrupted  by  the  enemy,  or 
going  into  the  military  service  of  the  country  during  the  war ;  show- 
ing that  nothing  but  the  force  of  a  public  enemy,  or  a  demand  for  his 
service  in  the  defence  of  his  country  against  such  enemy,  would  excuse, 
or  be  received  as  such  from  a  settler,  for  quitting  his  possession. 
And  by  the  second  act  it  is  apparent  that  this  continuity  of  possession 
and  personal  residence  was  considered  of  so  much  importance,  that  no 
application  for  a  warrant  was  to  be  received  at  the  land  office,  unless 
the  applicant,  or  some  one  or  more  under  him  were  actually  residing 
on  the  land  at  the  time  of  the  application.  Thus  demonstrating, 
most  clearly,  that  no  previous  settlement,  however  long  continued, 
or  however  extensive  and  valuable  the  improvements  upon  the  land 
might  be,  would,  unless  the  personal  residence  were  kept  up  and  con- 
tinued, avail,  and  entitle  the  settler  to  a  warrant  for  the  land. 

The  late  Chief  Justice  Tilghman,  in  delivering  his  opinion  in  the 
case  of  Cluggage  v.  Duncan,  I  Serg.  fy  Rawle  120,  121,  says, 
"  abandonment  is  not  in  all  cases  a  matter  of  fact.  It  may  be  a 
conclusion  of  law  from  facts.  Where  a  man  makes  a  settlement 
and  leaves  it  for  a  great  length  of  time,  it  does  not  signify  for  him  to 
say,  that  he  keeps  up  his  claim.  The  law  declares  that  such  verbal 
claims  have.- -no  avail  against  the  act  of  relinquishing  the  possession. 
And  in  such  case  I  consider  it  as  the  right  of  the  judge  to  declare 
the  conclusion  of  law."  And  in  a  later  case,  Watson  v.  Gilday,  11 
Serg.  <$•  Rawle  340,  where  Mr  Justice  Duncan  delivered  the  opinion 
of  this  court.  He  says,  "  a  man  may  abandon  his  settlement,  and 
that  abandonment  may  be  of  such  a  cast  as  that  the  court  will  decide 
it  as  a  matter  of  law,  independent  of  the  statutory  provisions  of  limi- 
tation as  to  seven  years,  because  continuity  of  actual  residence  and 
possession,  is  the  very  vital  principle  of  this  right,  and  is  a  part  of 
its  legal  definition.  Hence  it  is  determined  that  settlements  must 
not  have  the  smallest  cast  of  abandonment.  The  abandonment, 
then,  is  not  constructive,  but  absolute  ;  a  dereliction  of  the  possession, 
which  amounts  to  a  surrender  of  the  pre-emption  right,  unless  this 
dereliction  is  accounted  for  by  some  extraordinary  occurrence,  as  being  dis- 
possessed by  force,  and  an  immediate  prosecution  of  the  right,  or  pro- 


50  SUPREME  COURT  [Pittsburgh, 

[Brentlinger  v.  Hutchinson.] 

sedition  within  some  reasonable  time,  or  being  driven  off  by  the  public 
enemy." 

By  the  fifth  section  of  the  limitation  act  passed  the  26th  of  March 
1786,  persons  who  had  claims  to  land  founded  upon  settlement,  im- 
provement or  occupation,  without  other  title,  were  debarred  from 
bringing  actions  for  the  recovery  of  them,  unless  they  or  those  under 
whom  they  claimed  had  had  the  quiet  and  peaceable  possession  of 
the  same  within  seven  years  next  before  bringing  their  actions. 
This  section  of  this  act  was  considered  so  just  and  reasonable,  that  it 
was,  for  a  considerable  time  after  its  passage,  applied  by  the  courts  of 
the  state  to  cases  where  settlers  had  left  and  deserted  the  possession 
of  the  lands  held  by  their  settlements,  subsequently  to  the  date  of  its 
passage.  It  has  however  of  late,  from  its  terms,  been  held  to  extend 
only  to  cases  of  abandonment  before  that  time.  It  is  certainly  true 
that  it  is  retrospective  in  its  terms:  but  then  it  shows  what  was  at 
that  time  considered  by  the  legislature  the  utmost  indulgence  that 
ought  to  be  allowed  to  a  settler  who  had  quitted  his  settlement  and 
improvement,  to  resume  the  possession  of  it  again. 

One  thing  however  is  demonstrated  most  clearly  by  this  section, 
taken  in  connection  with  the  third  section  of  the  act,  that  the  legis- 
lature intended  that  settlement-rights  should  not  be  placed  on  the 
same  footing  with  titles  held  under  locations  or  warrants  and  surveys 
returned  into  the  surveyor-general's  office,  because  the  third  section 
allowed  to  all  such,  who  were  not  in  possession  at  that  time,  and 
where  adverse  possession  of  the  land  had  been  taken  and  was  held 
by  others  fifteen  years,  to  bring  suits  for  the  purpose  of  recovering  the 
possession  thereof;  whereas  no  time  was  allowed  to  those  who 
claimed  merely  by  settlement  right,  unless  where  they  had  been 
driven  off  by  force  or  terror  of  the  savages  or  other  persons,  &c.  and 
in  that  case  they  were  only  allowed  Jive  years  for  regaining  their 
possession.  It  is  impossible  for  us  to  close  our  eyes  against  all  the 
various  provisions  and  directions  of  the  legislature  at  different  times 
on  the  subject  of  settlement-rights  to  land :  first,  in  defining  what 
shall  constitute  a  settlement,  and  how  the  residence  and  possession 
shall  be  kept  up  and  continued  in  order  to  make  it  available  ;  and  in 
the  next  place  treating  it  as  a  privilege  that  is  granted  without  con- 
sideration, and  if  the  possession  be  relinquished  without  good  cause 
for  any  length  of  time,  a  forfeiture  may  be  declared  without  time 
given  for  redemption.  I  am  not  now  to  be  understood  as  speaking 
of  settlements  made  upon  land  lying  north  and  west  of  the  rivers 
Ohio  and  Alleghany  and  Conewango  creek,  because  I  look  upon 
settlements  made  there  as  part  of  the  consideration  stipulated  to  be 
given  to  the  state  for  the  land  under  the  act  of  the  3d  of  April  1792, 
and  are  to  be  of  a  certain  extent  and  of  certain  duration. 

It  has  been  said  that  settlement  rights  are  of  more  value  and  more 
to  be  regarded  in  law  now  than  formerly:  that  is  true;  but  since  the 
legislature  have  acted  upon  the  matter  and  defined  what  they  shall 
be,  and  how  they  shall  be  kept  up  and  continued,  no  estimation 


Sept.  1832.]  OF  PENNSYLVANIA.  51 

[Brentlinger  v.  Hutchinson  ] 

can  be  put  on  them  that  is  not  authorised  by  what  they  have  been 
pleased  to  declare  and  direct.  Whatever  these  rights  were  imme- 
diately after  the  act  of  the  22d  of  September  1794,  they  must  be 
now  nothing  more  or  less.  Since  that,  the  legislature  has  made 
no  change  whatever  in  respect  to  their  nature  and  character.  In 
1795  in  the  Lessee  of  Howard  v.  Pollock,  1  Yeates  512,  they  were 
classed  among  the  imperfect  rights.  In  the  same  year  in  the  case  of 
the  Lessee  of  Smith  v.  Brown,  Chief  Justice  M'Kean,  who  pronounced 
the  opinion  of  the  court,  says,  "there  are  three  kinds  of  rights:  jus 
proprietatis,  jus  possessionis  and  jus  vagum  or  an  imperfect  right ;  set- 
tlements may  be  ranked  among  the  latter  species.  It  is  a  right  to 
pre-emption;  a  claim  to  favour.  And  as  late  as  1824,  in  Smith  v. 
Oliver,  11  Serg.  <$•  Rawle  266,  the  present  chief  justice  of  this  court 
calls  a  settlement  right  a  "  mere  equity."  and  therefore  it  was  de- 
cided in  that  case,  that  one  could  not  be  seised  of  an  improvement  right 
for  the  use  of  another. 

Upon  the  principle  of  continuity  of  possession  and  residence,  which 
is  so  expressly  required  by  our  acts  of  assembly  on  the  subject,  it  has 
been  decided  that  the  same  "man  cannot  be  an  actual  settler  on 
two  tracts  of  land :"  and  that  the  title  of  the  settler  does  not  depend 
on  the  extent  of  his  improvements,  but  on  the  animo  residendi  and 
the  possession  continued.  See  Lessee  of  M'Laughlin  v.  JHaybury,  4 
Yeates  537,  538.  It  is  obvious  a  man  can  have  but  one  place  of 
abode  at  the  same  time.  To  constitute  a  settlement  right  to  land, 
the  settler,  as  we  have  seen,  is  required  by  the  acts  of  the  legislature 
to  make  the  land  the  place  of  his  abode  and  to  continue  it ;  the  mo- 
ment therefore  that  he  changes  and  fixes  his  abode  elsewhere,  unless 
driven  to  do  so  by  force  or  he  enters  into  the  military  service  of  his 
country  in  defence  of  its  liberty  and  rights,  the  former  ceases  to  be  his 
place  of  abode  and  his  right  to  it  by  settlement  would  seem  to  cease 
also,  upon  a  literal  construction  of  these  acts. 

In  Star  V.Bradford,  2  Penns.  Rep.  384,  where  a  descriptive  location 
was  obtained  by  one  in  1769  who  had  a  survey  made  on  it,  and  a 
warrant  by  another  in  1784  who  had  a  survey  made  and  returned 
but  no  return  was  made  of  the  survey  on  the  location  until  1788;  it 
was  held  and  decided  as  a 'question  of  law  by  this  court,  without 
taking  into  the  account  the  time  that  the  land  office  was  closed 
during  the  revolutionary  war,  that  the  neglect  on  the  part  of  the 
owner  of  the  location  in  not  having  a  return  made  earlier  of  his 
survey,  was  an  abandonment  in  law  of  his  right  under  it  and  was 
therefore  postponed  to  the  right  under  the  warrant.  Mr  Justice 
Rogers  who  delivered  the  opinion  of  the  court  in  that  case  seemed 
to  think  that  the  time  allowed  for  making  a  return  of  the  survey  in 
such  case  ought  not  to  exceed  seven  years  upon  principle  of  analogy 
to  the  fifth  section  of  the  limitation  act  of  the  26th  of  March  1786; 
and  that  as  often  as  the  question  of  abandonment  arises  for  mere 
lapse  of  time,  where  there  is  no  dispute  as  to  length  of  it,  it  is  a 
question  of  law  to  be  decided  by  the  court  without  regard  to  the  inten- 


52  SUPREME  COURT  [Pittsburgh, 

[Brentlinger  v.  Hutchinson.] 

lion  of  the  party.  In  this  sentiment  or  rule  I  most  fully  concur ; 
and  agree  also  that  the  limitation  of  time  should  not  be  permitted  to 
exceed  seven  years.  It  is  surely  of  great  importance  to  the  com- 
munity, as  well  as  individuals,  that  the  rule  on  this  subject  should 
be  fixed,  uniform  and  known.  I  would  also  say  that  wherever  the 
question  of  abandonment  is  made  upon  a  lapse  of  time  less  than 
seven  years,  accompanied  by  circumstances  from  which  it  might  be 
inferred  that  the  party  intended  to  abandon,  that  it  was  a  mixed 
question  of  fact  and  law  to  be  submitted  to  the  decision  of  the  jury. 
It  is  certainly  the  law  that  a  party  may  abandon  at  any  time,  within 
seven  days  if  he  chooses,  and  wherever  he  has  relinquished  the  pos- 
session of  the  land  within  less  than  seven  years,  it  would  become  a 
matter  of  contention  then  to  be  settled  by  the  jury. 

In  giving  this  indulgence  to  an  actual  settler,  I  am  far  from  being 
perfectly  satisfied  that  it  may  not  be  in  opposition  to  the  will  and 
intention  of  the  legislature,  as  it  has  been  manifested  in  their  acts  on 
this  subject ;  but  still  I  think  it  would  be  sufficient  to  give  repose  and 
quiet  to  the  public,  and  at  the  same  time  afford  ample  security  to  the 
rights  of  individuals.  The  most  formidable  objection  which  I  see 
against  extending  the  indulgence  to  seven  years  is,  that  it  may  often 
prevent  the  state  from  disposing  of  the  land  to  others  who  are  willing 
and  desirous  to  pay  the  state  for  it,  and  might  savour  of  the  idea  of 
enabling  one  person  to  hold  two  or  more  tracts  of  land  by  settlement 
right,  by  shifting  and  changing  his  possession  and  residence  from  one 
to  another  once  in  every  seven  years,  until  he  went  around  the  whole, 
which  I  am  strongly  inclined  to  believe  was  never  intended. 

In  the  case  under  consideration,  however,  not  only  seven,  but  at 
least  seventeen  or  eighteen  years  elapsed  from  the  time  that  Hutchin- 
son lost,  left,  and  relinquished  the  possession  of  the  land,  before  he, 
or  those  claiming  under  him,  made  any  attempt  to  recover  it.  And 
in  the  absence  of  all  colourable  excuse  for  this  long  delay,  I  have  no 
hesitation  in  saying  that  there  was  an  abandonment  in  law  of  his 
right  by  settlement,  and  that  the  court  below  ought  to  have  told  the 
jury  so,  instead  of  directing  them  that  an  abandonment  ought  not  to 
be  presumed. 

The  judgment  of  the  court  below  is  reversed. 


Sept.  1832.]  OF  PENNSYLVANIA.  53 


Adams  et  al.  against  M'llheny. 

A  plaintiff  having  appealed  from  the  judgment  of  a  justice  of  the  peace  against 
him,  recovered  a  judgment  in  his  favour  in  court.  Held,  that  he  was  entitled  to  have 
a  judgment  for  full  costs. 

ERROR  to  Mleghany  county. 

William  M'llheny  sued  William  Mams  and  George  M'Bride  before 
a  justice  of  the  peace,  who  rendered  a  judgment  for  the  defendants, 
from  which  the  plaintiffs  appealed,  and  recovered  in  court  an  award 
for  13  dollars,  upon  which  a  judgment  was  rendered  for  that  sum 
and  costs;  to  reverse  which,  as  to  costs,  this  writ  of  error  was  sued 
out. 


Selden,  for  plaintiff  in  error,  cited,  17  Serg.  fy  Rawle  366. 

W.  W.  Fetterman,  contra,  cited,  1  Rawle  426;  16  Serg.  fy  Rawle 
296  ;  1  Penns.  Rep.  23. 

The  opinion  of  the  Court  was  delivered  by 

KENNEDY,  J.  —  It  appears  by  the  final  determination  of  this  cause, 
that  the  defendant  in  error  had  a  just  claim  against  the  plaintiffs  in 
error  for  13  dollars,  which  they  wholly  refused  to  pay.  It  may  there- 
fore be  well  said,  as  it  was  in  Lamb  v.  Clark,  17  Serg.  fy  Rawle  366, 
that  they  have  been  "  the  efficient  cause  of  the  costs  being  incurred," 
both  before  the  justice  and  in  court,  and  for  this  reason,  if  there  be 
no  law  to  militate  against  it,  ought  to  pay  them.  From  the  act  of 
the  legislature  giving  to  justices  of  the  peace  jurisdiction  in  certain 
cases  growing  out  of  contracts,  I  am  inclined  rather  to  think  that  it 
was  not  their  intention  to  exonerate  a  defendant  from  the  payment 
of  costs,  where  he  stood  justly  indebted  to  the  plaintiff,  and  without 
any  good  reason  had  entirely  refused  to  pay.  Neither  do  I  conceive 
that  it  was  their  design  to  repeal  or  alter  the  statute  of  Gloucester  in 
respect  to  the  recovery  of  costs,  further  than  they  have  made  a  dif- 
ferent provision  on  the  subject.  I  feel  satisfied  that  the  right  of  the 
defendant  in  error  to  recover  costs  is  not  taken  away  by  the  act  of 
assembly;  and  if  not  given  by  it,  he  is  entitled  to  them  under  the 
statute  of  Gloucester. 

The  award  of  the  arbitrators  and  judgment  are  therefore  affirmed. 


54  SUPREME  COURT  [Pittsburgh, 


Commonwealth  against  Baldwin. 

A  confession  of  judgment,  "  sum  to  be  liquidated  by  attorney,"  operates  aa  a  lien 
upon  the  defendant's  real  estate,  although  not  afterwards  liquidated. 

A  judgment  in  the  name  of  the  treasurer,  for  the  use  of  the  commonwealth,  is 
substantially  a  judgment  of  the  commonwealth,  so  as  to  exempt  it  from  the  opera- 
tion of  a  statute,  limiting  the  period  for  which  a  judgment  shall  continue  a  lien. 

The  lien  of  a  judgment  in  favour  of  the  commonwealth  is  not  lost  by  lapse  of  time. 

FROM  the  common  pleas  of  Jllleghany  county. 

This  was  an  appeal  from  the  decree  of  the  common  pleas,  appro- 
priating the  proceeds  of  the  sale  of  the  real  estate  of  Baldwin.  A 
suit  was  brought  to  January  terra  1810,  in  the  name  of  "the  Trea- 
surer for  the  use  of  the  commonwealth  of  Pennsylvania"  against  Bald- 
win, in  debt  for  10,201  dollars.  "  5th  April  1816,  Mr  Baldwin  con- 
fesses judgment,  sum  to  be  liquidated  by  attorneys."  No  liquidation 
was  ever  made.  When  this  judgment  was  entered,  the  defendant 
was  seised  of  certain  lands,  which  subsequently,  on  the  19th  Septem- 
ber 181 6,  he  mortgaged  to  the  Bank  of  Pennsylvania.  Upon  the  sale 
of  these  lands,  in  1830,  the  money  was  brought  into  court  for  appro- 
priation, when  the  questions  arose  : 

1.  Did  the  judgment  ever  operate  as  a  lien  1 

2.  If  it  did,  is  the  lien  lost  by  lapse  of  time  1 

3.  If  the  state  be  exempt  from  the  operation  of  the  acts  respecting 
the  revival  of  judgments,  is  a  judgment  in  favour  of  the  treasurer, 
who  sues  for  the  use  of  the  state,  also  exempt? 

T.  B.  Dallas,  for  appellant,  cited  2  Atk.  385  ;  16  Serg.  fy  Rawle 
347  ;  11  Serg.  fy  Rawle  94  ;  5  Cranch  88 ;  15  Serg.  fy  Rawle  177  ; 
9  Cranch  203 ;  3  Wheat.  631  ;  2  Cranch  386;  2  Overton  118  ;  1  Dull. 
178 ;  4  Serg.  fy  Rawle  166  ;  2  Peters' 's  S.  C.  Rep.  662  ;  6  Com. 
Dig.  28  ;  1  Black.  Comm.  298  ;  7  Dane's  Dig.  426 ;  1  Call  194, 
475  ;  3  Call  220. 

Brackenridge,  contra,  cited,  2  Serg.  fy  Rawle  142  ;  16  Serg.  <$• 
Rawle  348  ;  5  Binn.  77  ;  3  Serg.  fy  Rawle  291  ;  16  Serg.  fy  Rawle 
250  ;  18  Johns.  227  ;  9  Wheat.  735  ;  1  Peters' s  S.  C.  Rep.  326. 

Ross,  in  reply,  cited,  Act  of  28th  March  1806  ;  Levinz  71,  72,  73; 
I  Bac.  149  ;  Moore  672  ;  Plowd.  136;  1  DaU.  58. 

The  opinion  of  the  Court  was  delivered  by 

GIBSON,  C.  J. — In  a  monarchy,  the  exemption  of  the  sovereign 
from  the  operation  of  statutes  in  which  he  is  not  named,  is  founded 
in  prerogative ;  and  hence  it  is  supposed,  that  no  such  exemption 


Sept.  1832.]  OF  PENNSYLVANIA.  55 

[Commonwealth  v.  Baldwin.] 

can  be  claimed,  for  a  sovereign  constituted  of  the  people  in  their  col- 
lective capacity.  It  is  certain,  that  so  much  of  the  prerogative  as 
appertained  to  the  king  by  virtue  of  his  dignity,  is  excluded  by  the 
nature  of  our  government,  which  possesses  none  of  the  attributes  of 
royalty;  but  so  much  of  it  as  belonged  to  him  in  the  capacity  of 
parens  patriot,  or  universal  trustee,  enters  as  much  into  our  political 
compact,  as  it  does  into  the  principles  of  the  British  constitution. 
Why  should  it  not  do  so  peculiarly,  where  the  maxim  solus  populi 
is  the  predominant  principle  of  a  government,  to  whose  operations 
aud  well  being,  the  prerogative  is  as  essential  as  to  those  of  a  mo- 
narchy 1  The  necessity  of  it,  in  regard  to  statutes  of  limitation,  is 
peculiarly  apparent.  The  business  of  every  government  is  necessa- 
rily done  by  agents,  chosen,  in  a  republic,  by  the  people,  it  is  true, 
but  still  no  more  than  agents,  and  chosen  certainly  with  no  greater 
attention  to  the  qualification  of  vigilance,  than  are  the  agents  of  an 
individual,  whose  utmost  care  in  the  choice  of  them  is  excited  by 
the  interest  which  he  has  directly  in  the  event ;  and  the  frequency 
of  miscarriage  in  any  business,  managed  even  by  these,  need  not  be 
pointed  out.  There  is  a  perpetual  tendency  towards  relaxation, 
where  exertion  is  not  invigorated  by  the  stimulus  of  private  gain  ; 
and  this  is  the  greater  where  the  functions  of  the  officer  are  to  be 
performed,  not  under  the  supervision  of  an  employer  immediately 
concerned,  but  before  the  eyes  of  those  who  have  no  other  interest 
in  the  business,  than  the  remote  stake  which  they  have  in  the  pub- 
lic prosperity.  To  some  extent,  therefore,  and  in  proportion  to  the 
want  there  happens  to  be  of  systematic  accountability  in  the  respec- 
tive departments,  remissness  of  its  ministers  will  be  found  in  every 
government ;  and  it  is  a  principle,  not  only  of  great  practical  value, 
but  of  the  first  necessity,  that  the  legislature  shall  not  be  taken  to 
have  postponed  a  public  right  to  that  of  an  individual,  unless  such 
an  intent  be  manifested  by  explicit  terms  (as  it  has  been  in  the  order 
of  paying  a  decedent's  debts),  or  at  least  by  necessary  and  irresistible 
implication.  In  the  United  States  v.  Kirkpatrick,  9  Wheat.  720,  and 
the  United  States  v.  Vanzandt,  11  Wheat.  184,  it  was  ruled  that  the 
laches  of  the  public  officers,  however  gross,  does  not  discharge  a 
surety  from  an  official  bond;  and  the  principle  of  these  cases  was  again 
recognised  in  Dox  \.The  Postmaster- General,  I  Peters1  s  S.  C.  Rep.  326. 
In  the  construction  of  statutes  of  limitations,  this  salutary  principle 
has  been  retained,  I  believe,  by  the  courts  of  all  our  sister  states ;  at 
least,  I  have  not  found  a  decision  by  any  of  them  inconsistent  with 
it,  while  by  many  it  has  been  distinctly  asserted.  It  was  thus  held 
in  Weatherhead  v.  Bledsoe,  2  Tennessee  Rep.  352.  In  Kentucky,  the 
distinction  which  1  have  intimated,  has  been  taken  between  the 
prerogative  which  relates  to  the  government,  and  that  which  relates 
to  the  person  of  the  king  ;  by  reason  of  which,  the  state  was  held 
not  to  be  barred  in  a  personal  action  by  a  statute  in  which  it  was  not 
named.  Commonwealth  v.  JLPGowan,  4  Bibb  62.  In  the  case  of 
JVwwno  v.  The  Commonwealth,  4  Hen.  fy  Munf.  57,  it  is  said  that  the 


56  SUPREME  COURT  [Pittsburgh, 

[Commonwealth  v.  Baldwin.] 

English  maxim  nullum  tempus,  has  been  adopted  in  Virgmia ;  and 
that  statutes  of  limitations  do  not  extend  to  the  commonwealth,  in 
civil  suits,  not  founded  on  any  penal  act  in  which  the  commence- 
ment of  the  action  is  expressly  limited  ;  on  which  principle  it  was 
determined,  that  no  length  of  time  bars  the  commonwealth  from 
having  execution  of  a  judgment,  or  subjects  her  to  the  necessity  of 
suing  out  a  scire  facias.  The  same  principle  ruled  the  cause  in 
Kemp  v.  The  Commonwealth,  I  Hen.  fy  JWunf.  85,  which  was  the  case 
of  a  personal  demand  prosecuted  by  motion — a  mode  peculiar  to  Vir- 
ginia ;  and  there  are,  I  believe,  other  decisions  to  the  same  effect  in 
that  state.  In  Maryland,  the  doctrine  is  distinctly  asserted,  in  Cheny 
v.  Ringgold,  2  Harris  <$-  /.  87 ;  Hall  v.  Gittings,  2  Harris  $>  J.  1 12; 
Stewart  v.  Mason,  3  Harris  fy  J.  531,  and  perhaps  some  other  cases  : 
as  it  is  in  New  York,  in  The  People  v.  Gilbert,  18  Johns.  227,  and 
Wilcox  qui  tarn  v.  Fitch,  20  Johns.  422.  In  Stoughton  v.  Barker, 
4  Mass.  428,  Chief  Justice  Parsons,  and  all  the  judges  of  the  su- 
preme court  of  Massachusetts  held,  that  a  condition  or  litnitation  for 
the  benefit  of  the  public  is  not  extinguished  by  any  inattention  or 
neglect,  in  respect  of  compelling  the  owner  to  comply  with  it. 
There  may  be  decisions  to  the  same  effect  in  other  states,  which 
have  escaped  my  research  ;  but  those  already  cited  would  be  enti- 
tled not  merely  to  respect,  but  a  commanding  influence,  even  were 
the  question  in  Pennsylvania  an  open  one.  We  have,  however,  but 
a  single  case,  in  which  the  naked  point  was  directly  presented  for 
adjudication.  The  public  lands  have  been  open  to  entry  for  the  pur- 
pose of  settlement ;  and  the  possession  of  the  seller  indicating  his 
assent  to  become  purchaser  of  the  title  on  the  terms  held  out,  has 
been  under,  instead  of  being  adverse  to  the  commonwealth.  Hence 
it  might  seem,  from  a  cursory  view  of  Morris  v.  Thomas,  5  Binn.  77, 
and  M'Coy  v.  Dickinson  College,  4  Serg.  fy  Rawle  302,  that  those 
cases  were  thus  determined,  not  because  there  was  no  statute  to  bar 
the  commonwealth,  but  because  there  was  no  adverse  possession. 
But  in  Bagley  v.  Wallace,  16  Serg.  fy  Rawle  245,  the  maxim  was 
applied  to  lands  on  which  the  entry  of  the  defendant  was  an  unequi- 
vocal trespass,  and  the  exemption  of  the  commonwealth  put  expressly 
on  the  ground  of  her  prerogative  as  a  sovereign.  And  the  same 
principle  seems  to  have  been  held  in  The  Commonwealth  v.  M* Don- 
ald, 16  Serg.  fy  Rawle  400,  where  it  was  determined  that  the  adverse 
possession  of  part  of  a  street,  for  twenty  years,  which,  in  analogy  to 
the  statute  of  limitations,  bars  the  franchise  of  an  individual,  did  not 
bar  the  public  right  of  way,  and,  undoubtedly,  because  there  is  no 
statute  to  bar  the  public  in  any  case,  from  which  an  analogy  could 
be  drawn.  Without,  then,  pretending  to  fix  its  limits,  in  all  cases, 
it  may  be  safely  asserted  that  this  prerogative  is  a  principle  of  our 
government,  and  a  part  of  the  law  of  the  land. 

As  to  the  remaining  points,  it  is  not  to  be  doubted  that,  though 
this  suit  is  in  the  name  of  the  treasurer,  the  commonwealth  is  the 
actual  party,  and  entitled  to  insist  on  her  prerogative.  The  treasurer 


Sept.  1832.]  OF  PENNSYLVANIA.  67 

[Commonwealth  v.  Baldwin.] 

is  but  a  trustee  to  her  use  :  and  the  nature  of  the  judgment  in  her 
favour  presents  a  question  of  no  greater  difficulty.  It  was  for  a  sum 
certain,  in  the  first  instance,  and  consequently  final.  This  feature 
was  wanting  in  the  Philadelphia  Bank  v.  Craft,  16  Serg.  fy  Rawle 
347,  in  which  the  judgment  was  rendered  not  even  for  a  nominal 
sum.  The  law  of  the  subject  is  satisfactorily  stated  in  Lewis  v. 
Smith,  2  Serg.  <$•  Rawle  1 55,  where  it  was  determined,  that  if  on  a 
confession  of  judgment,  the  demand  is  in  the  nature  of  a  debt  which 
may  be  ascertained  by  calculation,  it  is  sufficient  to  enter  judgment 
generally,  which,  in  contemplation  of  law,  is  for  the  amount  laid. 
Here  the  action  being  in  debt  at  the  common  law,  was  for  a  specific 
sum  ;  and  even  if  a  declaration  were  not  filed,  the  judgment  would 
be  rendered  certain  by  relation  to  the  writ.  Were  it  otherwise,  every 
judgment  by  default,  in  an  action  of  debt  for  a  penalty  which  is 
never  the  real  debt,  would  be  treated  as  interlocutory  ;  yet,  I  believe 
it  has  never  been  doubted,  that  such  a  judgment  binds  the  lands  of 
the  debtor,  even  though  it  were  a  part  of  the  terms  that  all  payments 
made  were  to  be  allowed  by  the  prothonotary. 

ROGERS,  J.  and  Ross,  J.  took  no  part  in  the  judgment,  being 
stockholders  in  the  bank. 

The  plaintiff  had  leave  to  take  the  amount  of  the  judgment  out  of 
court. 


Oliphant  against  Ferreii. 

• 

Copies  of  entries  in  the  books  of  the  land  office,  duly  certified  by  the  secretary  r  are 
competent  evidence  to  prove  the  real  owner  of  a  warrant. 

ERROR  to  Fayette  county. 

This  was  an  action  of  ejectment  by  John  Oliphant  against  William 
Ferren,  to  recover  four  hundred  and  six  and  a  half  acres  of  land. 
The  plaintiff,  after  he  had  given  in  evidence  a  warrant  of  the  5th 
April  1792  to  David  Dunbar,  and  a  survey  thereon,  offered  in  evi- 
dence the  following  paper,  signed  by  the  secretary  of  the  land  office, 
and  certified  under  the  seal  of  the  office. 

«  1792,  April  21. 9319. 

"  J.  Nicholson,  Esq.  7  warrants,  amount  2600  acres,  at  50s.  per 
acre,  ,£65. 

"  By  sundry  balances  and  interest  on  two  tracts  of  land  of  400 
acres  each,  granted  by  warrant  dated  7th  September  1789,  to 
Clement  Bidwell  and  George  Truder,  said  land  found  not  vacant, 
.£92.  7s.  Certificate  delivered  to  Mr  Bidwell  for  J.  N.,  May  2, 1799, 
fees  70s.  um.  pd. 


58  SUPREME  COURT  [Pittsburgh, 

[Oliphant  v.  Ferren.] 

"  In  testimony  that  the  above  is  a  true  copy  of  an  entry  in  a  book 
marked  No.  4,  old  purchase  blotter  from  the  1st  of  February  1792  to 
31st  December  1793,  remaining  in  the  office  of  the  secretary  of  the 
land  office,  I  have  hereunto  set  my  hand,  and  caused  the  seal  of 
said  office  to  be  affixed  this  21st  day  of  May  1830." 

Several  other  papers  of  the  same  character  were  offered  at  the 
same  time,  all  of  which  were  objected  to  by  the  defendant  and  re- 
jected by  the  court;  which  was  the  subject  of  the  only  bill  of  excep- 
tions argued  here. 

The  opinion  of  the  Court  was  delivered  by 

HUSTON,  J. — The  only  error  assigned  is  contained  in  a  bill  of  ex- 
ceptions to  testimony.  That  testimony  was  certain  certificates  from 
the  office  of  the  secretary  of  the  land  office.  To  understand  the 
evidence  we  must  recur  to  certain  acts  of  assembly.  The  act  of 
29th  March  1792  recites  in  the  preamble,  that  sundry  persons,  since 
1st  July  1784,  had  purchased  warrants  for  lands  and  paid  for  them, 
and  for  reasons  there  specified  could  not  procure  the  land  or  some 
part  of  it;  and  section  one  provides,  that  in  such  case  the  owner  of 
the  warrant  shall  apply  to  the  deputy  surveyor  of  the  district  in 
which  the  lands  lie,  who  shall  certify  to  the  surveyor-general  whe- 
ther any,  and  how  much  of  the  land  described  in  said  warrant  can 
not  be  surveyed,  for  the  reason  aforesaid,  or  being  surveyed,  inter- 
feres with  prior  rights,  &c. ;  and  the  surveyor-general  shall  certify  to 
the  receiver-general  how  much  of  said  warrant  shall  remain  unsatis- 
fied. 

Section  2.  Whenever  it  shall,  by  the  original  receipts  or  other 
legal  voucher,  or  by  the  entries  made  in  his  books,  appear  to  the 
receiver-general  that  any  person  or  persons  have  paid  into  the  land 
office  any  money  or  certificate,  for  lands  granted  to  them  by  warrants 
issued  after  the  1st  of  April  1784,  and  which  they  have  not  obtained, 
or  that  they  have  paid  any  money  over  and  above  what  was  due  to  the 
commonwealth  for  the  lands  obtained  by  virtue  of  said  warrants,  he 
shall  carry  the  said  money  or  balance  to  the  credit  of  such  person  or 
persons,  his  heirs,  &c.  in  payments  already  due  or  hereafter  to  be- 
come due  to  the  commonwealth  for  the  purchase  of  any  land  within 
the  same,  &c. 

This  act  was  to  expire  on  the  1st  of  January  1795.  John  Keble 
was  chief  clerk  in  the  office  of  the  receiver-general  from  the  1st  of 
April  1784  till  after  1795.  This  man  kept  a  series  of  blotters,  or 
books  of  original  entries  of  all  moneys  paid  into  the  receiver-general's 
office,  which  are  numbered  1,  2,  3,  4,  &c.  in  which  the  time  of  pay- 
ment, and  the  person  who  paid,  or  obtained  any  credit  in  that  office, 
and  the  purpose  to  which  the  money  paid  or  the  credit  was  applied, 
are  all  entered.  In  the  warrant  book  generally,  the  warrant  is 
charged  to  the  warrantee  or  person  in  whose  name  any  warrant 
issued,  but  in  the  blotter  is  found  the  name  of  the  person  or  company 
who  actually  paid  into  the  office  the  sums  of  money  on  which  any 


Sept.  1832.]  OF  PENNSYLVANIA.  59 

[Oliphant  v.  Ferren.] 

warrant  or  list  of  warrants  was  obtained.  Somehow  it  happened 
that  these  blotters  were  not  considered  office  books,  and  copies  from 
them,  under  seal,  were  not  considered  evidence.  On  the  21st  of 
March  1823  an  act  of  assembly  was  passed,  enacting,  that  "all 
copies  of  records,  documents  and  papers  in  the  offices  of  the  secretary 
of  the  commonwealth,  secretary  of  the  land  office,  surveyor-general, 
auditor-general  and  state-treasurer,  when  duly  certified  by  the  offi- 
cers of  said  offices  respectively,  shall  be  received  in  evidence  in  the 
several  courts  of  this  commonwealth,  in  all  cases  where  the  original 
records,  documents  and  papers  would  be  admitted  in  evidence;  pro- 
vided, however,  that  in  any  judicial  controversy,  before  any  court  of 
this  commonwealth,  either  party  have  the  original  record  or  docu- 
ment produced  on  the  service  of  proper  process  for  that  purpose." 

It  must  be  recollected  that  the  office  of  receiver-general  had  been 
abolished,  and  all  papers,  records,  &c.  of  that  office,  by  law,  were 
transferred  to  the  secretary  of  the  land  office.  Before  this  act,  the 
possession  of  the  original  receipt  for  the  purchase-money,  or  the  tes- 
timony of  /.  Keble  in  his  lifetime,  or  proof  of  his  hand  writing  and 
entry  in  these  books,  was  evidence.  This  act,  it  is  notorious,  had  an 
especial  reference  to  these  books,  and  since  its  enactment  such  copies 
are  evidence;  not  conclusive,  but  an  evidence  of  who  paid  the  money 
on  any  warrant  or  list  of  warrants.  Most  of  the  warrants  which 
issued  from  1784  till  22d  September  1794,  issued  in  the  names  of 
persons  who  had  no  interest  in  them,  and  often  in  fictitious  names. 
The  real  owner  procured  conveyances  from  the  warrantee  when  he 
was  going  to  patent  or  sell;  but  many  have  never  been  sold  or 
patented,  and  many  owners  of  warrants  and  land  became  insolvent 
or  are  dead.  Attempts  to  prove  ownership  of  warrants  surveyed  and 
returned,  but  not  claimed  by  any  person,  have  occurred  in  cases  fair 
and  honest,  and  in  cases  not  of  that  description ;  proof  of  who  actually 
paid  for  a  warrant,  is  among  the  most  unequivocal  evidence  of  owner- 
ship, though  not  always  conclusive.  The  dates  appear  wrong,  but 
are  easily  understood  when  we  know  the  practice  of  the  land  office. 
The  last  part  of  the  document,  and  the  last  of  the  applications  for 
warrants  is  dated  5th  of  April,  and  filed  on  that  day  in  the  office  of 
the  secretary  of  the  land  office.  Although  it  gave  no  right  until  the 
purchase-money  was  paid  to  the  receiver-general,  yet  the  practice 
was  (I  don't  say  it  was  a  good  one)  to  give  the  warrant  when  it 
issued  the  date  of  the  application,  although  it  actually  issued  some 
weeks  or  months  after  the  date  of  the  application,  and  the  title  to  the 
land  has  turned  on  the  proof  of  this  fact.  The  paper  offered  was 
evidence. 

Judgment  reversed,  and  venire  de  novo  awarded. 


60  SUPREME  COURT  [Pittsburgh 


Longstreth  and  Cook  against  Gray. 

In  an  action  upon  a  bond  conditioned  fur  the  payment  of  several  sums  at  different 
periods,  in  which  breaches  had  not  been  assigned,  no  defence  having  been  made,  a 
judgment  was  rendered  pursuant  to  a  rule  of  court ;  upon  which  the  plaintiff  took 
out  execution,  as  well  for  the  instalments  due  at  the  time  suit  was  brought,  as  for 
those  not  then  due,  but  which  had  become  due  afterwards.  Held,  that  such  execu- 
tion was  erroneous,  and  that  the  plaintiff  was  not  entitled  to  execution  for  the  sums 
which  became  due  after  suit  brought,  without  being  put  to  a  scire  facias. 

PURSUANT  to  a  rule  of  the  circuit  court,  the  plaintiffs,  having 
signed  judgment  for  want  of  an  affidavit  of  defence,  for  the  penalty 
of  a  bond,  with  condition  to  pay  1302  dollars  and  82  cents,  on  the 
22d  of  January  1831,  as  well  as  the  like  sum  for  three  successive 
years,  but  without  having  assigned  breaches,  had  issued  an  execu- 
tion, not  only  for  the  instalment  due  at  the  impetration  of  the  writ, 
but  for  another  grown  due  before  the  judgment.  This  execution  had 
been  set  aside  by  the  chief  justice  at  a  circuit  court  for  Alleghany 
county,  immediately  preceding  the  present  term,  with  leave  to  take 
out  execution  for  the  instalment  due  at  the  commencement  of  the 
action  ;  and  the  plaintiffs  now  moved  for  leave  to  take  out  execution 
for  the  second  instalment  also,  without  being  put  to  a  stire  facias. 

W.  W.  Fetterman,  for  the  motion. 
Foster,  contra. 

The  opinion  of  the  Court  was  delivered  by 

GIBSON,  C.  J. — Ever  since  the  decision  in  Collins  v.  Collins,  2 
Burr.  820,  it  has  been  considered  as  settled,  that  the  stat.  8  and  9, 
W.  3,  c.  1 1,  extends  to  bonda  payable  by  instalments  ;  and  this  con- 
struction is  consistent  not  only  with  the  letter  of  the  statute,  but  with 
the  nature  of  the  remedy  provided  by  it,  which  was  to  secure  the 
benefit  of  successive  defences  against  particular  instalments  subse- 
quently falling  due,  instead  of  subjecting  the  obligor  to  the  entire 
penalty,  on  failure  to  pay  a  part  of  the  debt  secured  by  it.  In  the 
case  at  bar,  an  opportunity  to  plead  whatever  might  be  a  defence  to 
the  subsequent  instalment,  was  not  afforded ;  nor  could  the  defendant 
have  had  it  by  filing  an  affidavit,  and  compelling  the  plaintiffs  to  as- 
sign their  breaches ;  for  nothing  could  be  assigned  that  was  not  a 
breach  at  the  impetration  of  the  writ — as  for  instance,  the  non  pay- 
ment of  money  that  was  not  then  demandable.  It  is  true,  that  at 
the  common  law,  the  penalty  was  the  substantive,  as  it  was  the 
formal  cause  of  action,  and  the  whole  of  it  became  demandable  as  an 
entire  duty,  by  the  most  inconsiderable  violation  of  the  obligor's  en- 
gagement ;  the  consequence  of  which  was,  that  he  was  driven  inlo 


Sept.  1832.]  OF  PENNSYLVANIA.  61 

[Longstreth  and  Cook  v.  Gray.] 

another  court  to  seek  relief  against  the  most  glaring  injustice  ;  but 
the  relief  provided  by  the  statute,  was  adapted  to  the  nature  of  the 
greivance,  by  making  each  instalment  a  substantive  cause  of  action. 
As  the  penalty  was  forfeited  by  a  single  breach,  the  plaintiff,  in  order 
to  escape  the  consequences  of  duplicity,  had  been  compelled  to  select 
a  single  default  where  there  were  more  than  one ;  and  it  was  to 
reconcile  the  remedy  for  this  inconvenience  to  the  common  law  form 
of  the  judgment,  as  well  as  to  protect  the  obligor  from  payment  of 
more  than  should  be  actually  due,  that  the  penalty  was  still  treated 
as  an  entire  duty  in  contemplation  of  law,  but  in  reality,  as  a  security 
for  what  were  substantially  separate  and  distinct  debts,  though  cre- 
ated by  the  same  instrument.  The  scire  facias,  therefore,  is  as  much 
the  originating  process  in  respect  of  instalments  not  demandable  at  the 
inception  of  the  suit,  as  would  be  an  original  writ,  were  they  secured 
by  separate  penalties  ;  and  it  seems  to  be  conceded,  that  it  would  be 
indispensable  here,  were  it  not  for  a  contrary  practice  supposed  to 
have  prevailed  since  the  decision  in  Sparks  v.  Garrigues,  I  Binn.  152, 
and  to  have  acquired  a  force  superior  to  that  of  the  statute,  which  hav- 
ing been  extended  to  this  country  only  by  practice,  can  claim,  it  is 
said,  no  more  respect  than  is  due  to  any  other  law  that  is  founded  in 
domestic  usage.  It  would  not,  I  presume,  be  contended  that  a 
statute  extended  to  this  country  by  express  provision,  obtains  not  by 
force  of  the  legislative  power ;  or  that  standing  unrepealed  by  our 
own  legislature,  it  is  less  obligatory  here  than  an  act  of  assembly 
passed  before  the  declaration  of  our  independence :  and  why  a  statute 
extended  by  practice,  should  not  also  have  the  force  of  a  legislative 
act,  I  am  unable  to  understand.  The  fact  of  submission  to  its  dic- 
tates, operates  but  as  evidence  of  the  legislative  will,  admitted  by  the 
acquiescence  of  the  people  ;  but  the  question  of  extension  once  set- 
tled, the  statute,  or  so  much  of  it  as  has  been  adopted,  operates  by  its 
inherent  power.  It  is  for  this  reason  that  we  have  held  ourselves 
bound  by  the  statutes  of  the  mother  country  as  firmly  as  by  our  own. 
But  the  matter  does  not  rest  on  conclusions  to  be  drawn  from  general 
principles.  By  the  act  of  the  28th  of  January  1777,  it  was  declared 
that  acts  of  assembly  in  force  on  the  14th  of  May  preceding,  should 
be  in  force  from  the  10th  of  February  ensuing,  "  as  fully  and  effectu- 
ally, to  all  intents  and  purposes,  as  if  the  said  laws  and  each  of  them, 
had  been  made  or  enacted  by  this  general  assembly ;  and  the  com- 
mon law,  AND  SO  MUCH  OF  THE  STATUTE  LAWS  OF  ENGLAND  AS 
HAVE  HERETOFORE  BEEN  IN  FORCE  IN  THE  SAID  PROVINCE."  If  then 

the  statute  of  William  be  thought  to  require  legislative  sanction  in 
order  to  raise  the  character  of  its  provisions  above  the  level  of  pre- 
scription, here  we  have  it :  and  it  would  therefore  seem  that  these 
provisions  are  no  more  to  be  repealed  by  decision,  or  their  construc- 
tion varied  by  practice,  than  if  they  were  re-enacted  here  in  terms. 
Neither  can  the  convenience  and  despatch  of  a  summary  award  of 
execution  add  a  particle  of  force  to  the  argument.  To  dispense  with 
the  scire  facias  in  respect  to  a  part  of  the  demand,  to  which  the  de- 


62  SUPREME  COURT  [Pittsburgh, 

[Longstreth  and  Cook  v.  Gray.] 

fendant  has  not  had  an  opportunity  to  plead,  by  calling  on  him  to 
respond  inatanter  to  a  motion  for  execution,  would  be  not  merely  to 
dispense  with  the  ordinary  process  of  the  law,  but  materially  to 
change  the  established  order  of  proceeding  as  regards  the  trial  by 
jury.  The  court  would  doubtless  direct  an  issue  if  there  were  ground 
to  suspect  the  existence  of  a  defence  ;  but  the  benefit  of  a  trial  by 
jury  would  be  held  by  no  better  tenure  than  the  discretion  of  the 
judge,  instead  of  being  what  it  really  is,  a  constitutional  franchise, 
demandable  of  right  and  in  the  first  instance.  It  would  be  equally 
convenient  and  conducive  to  despatch,  to  make  an  execution  the 
first  process  in  the  case  of  a  bond  for  a  gross  sum,  whenever  no  pro- 
bable ground  of  defence  should  appear ;  yet  no  one  will  pretend  that 
an  award  of  execution  on  motion  ought  in  that  case  to  be  substituted 
for  a  judgment  on  a  declaration  and  original  writ.  To  say  that  the 
court  would  be  bound  to  direct  an  issue  ex  debito  justicia,  is  to  say 
nothing.  That  would  make  the  summary  award  of  execution  de- 
pend on  a  previous  waiver  of  the  scire  facias;  and  no  one  pretends 
that  there  is  any  thing  in  the  statute  to  forbid  such  a  waiver.  What 
I  object  to,  is  an  arbitrary  determination  of  the  question  of  defence 
by  the  court  in  limine.  But  what  was  in  fact  the  point  decided  in 
Sparks  v.  Garrigues,  and  what  is  the  practice  to  which  it  is  supposed 
to  have  given  birth  1  The  question  had  respect  to  the  form  of  a 
judgment  in  an  action  on  a  bond  for  interest,  payable  annually  till 
the  principal  should  become  due ;  and  the  difficulty  was,  how  to 
frame  the  judgment  so  as  to  give  further  recourse  on  the  bond  for 
future  arrears  and  the  principal  when  demandable.  The  chief  jus- 
tice furnished  a  very  satisfactory,  and  it  seems  to  me,  a  very  obvious 
solution  of  it,  on  the  usual  judgment  for  the  penalty  as  a  security. 
In  fact  the  difficulty  had  been  disposed  of  in  Collins  v.  Collins,  already 
cited,  which  was  essentially  the  same  case,  but  stronger,  inasmuch 
as  there  was  actually  a  sum  to  be  defalcated,  in  which  case  the  statute 
of  set  off,  there,  as  here,  directs  the  judgment  to  be  for  the  residue  ; 
and  it  is  not  a  little  remarkable,  that  a  leading  case  of  such  import- 
ance shculd  have  been  passed  without  notice  by  the  counsel  or  the 
court.  But  in  demonstrating  the  practicability  of  applying  a  general 
judgment,  to  the  enforcement  of  future  payments,  the  chief  justice 
inadvertently  said,  that  the  plaintiff  must  move  the  court  for  future 
executions.  Whether  the  course  of  ulterior  proceeding  were  by 
motion  or  by  scire  facias,  being  no  part  of  the  inquiry,  was  a  subject  to 
which  his  attention  was  not  particularly  drawn;  and  what  was  said 
being  intended  merely  to  illustrate  the  position  taken  in  respect  to 
the  form  of  the  judgment,  was  predicated,  it  is  not  too  much  to  say, 
without  that  attention  to  extreme  accuracy  for  which  he  was  cer- 
tainly remarkable  in  delivering  his  judgment  on  the  point  decided. 
Had  his  researches  been  directed  to  the  subject  of  the  present  ques- 
tion, he  would  have  perceived,  at  once,  that  Howell  v.  Hanforth,  2  W. 
Bl.  Rep.  1016,  and  Ogilvie  v.  Foley,  2  W.  Bl.  Rep.  1111,  in  which 
the  notion  of  a  summary  award  of  execution  was  first  started,  had 


Sept.  1832.]  OF  PENNSYLVANIA.  63 

[Longstreth  and  Cook  v.  Gray.] 

been  overruled,  and  the  suggestion  of  breaches  deemed  indispen- 
sable, as  indeed  it  appears  to  be  by  the  letter  of  the  statute  itself, 
which  is  peremptory.  Either,  then,  Sparks  v.  Garrigues  was  not 
supposed  to  be  within  the  purview  of  the  statute,  or  the  chief  jus- 
tice's recollection  of  the  practice  was  misled  by  the  two  apocryphal 
cases  just  mentioned  ;  or,  what  is  more  probable,  by  the  very  prac- 
tice whose  origin  has  since  been  attributed  to  what  then  fell  from 
him,  but  which  has  long  prevailed,  here  and  elsewhere,  in  relation 
to  judgments  on  warrants  of  attorney.  These  have  never  been  treated 
as  within  the  statute,(a)  because  its  terms  are  applicable  to  none  but 
judgments  in  actions  depending,  and  rendered  on  verdict,  demurrer, 
confession,  or  nil  dicit ;  which  a  judgment  on  warrant  of  attorney  is 
not.  In  the  case  of  such  a  judgment,  the  practice  has  undoubtedly 
been  to  award  execution  on  motion,  for  instalments  already  liqui- 
dated, as  they  successively  become  due.  I  have  known  many  in- 
stances of  it,  without  being  able  to  call  to  recollection  a  single  one 
in  which  the  same  practice  was  applied  to  a  judgment  in  an  action 
that  had  been  depending.  That  there  have  been  exceptions,  in  the 
courts  of  a  state,  where  the  practice  has  been  so  loose  and  indetermi- 
nate as  ours  has  been  for  the  last  twenty  years,  is  altogether  proba- 
ble ;  but  that  there  has  been  such  a  uniformity  of  procedure  as  to 
acquire  the  force  of  law,  on  the  principle  of  communis  error,  or  even  a 
title  to  respect  on  the  score  of  consistency,  is  confidently  denied.  In 
conclusion,  it  is  believed  that  both  the  decision  in  Sparks  v.  Garri- 
gues, and  the  practice  of  our  courts,  as  far  as  it  can  be  ascertained, 
are  entirely  consistent  with  the  provisions  of  the  statute,  which,  in  a 
case  like  the  present,  are  decisively  adverse  to  a  summary  award  of 
execution. 

The  plaintiffs  took  nothing  by  their  motion. 

ROGERS,  J. — I  object  to  the  opinion  just  delivered,  because  it  over- 
turns a  practice  of  at  least  twenty-six  years  ;  and  that  without,  so 
far  as  I  can  perceive,  the  least  necessity.  In  Sparks  v.  Garrigues, 
Chief  Justice  Tilghriian  directed  the  course  to  be  pursued,  on  an  appli- 
cation similar  to  the  present,  in  language  which  it  is  impossible  to 
mistake.  It  is,  however,  said,  that  the  point  is  not  directly  decided; 
and  I  admit  that  it  is  not;  but,  when  a  practice  has  generally  ob- 
tained, in  conformity  to  a  recommendation  of  the  chief  justice  of 
this  court,  implicitly  sanctioned  by  his  colleagues,  it  seems  to  me 
it  deserves  all  the  respect  of  a  solemn  decision.  I  do  not  claim  the 
observance  of  the  rule  as  a  dictum,  but  because  it  has  been  acted 
upon  by  bench  and  bar,  from  that  time  until  the  present.  In  Sparks 
v.  Garrigues,  the  principal  question  was,  in  what  manner  the  judg- 
ment should  be  entered,  whether  for  the  penalty  or  for  the  interest, 
for  which  suit  was  brought. 

(a)  See  diisterbury  v  Morgan,  2  Taunton  195  ;  Coxv.  Rodbard,  3  Taunton  74,  and 
Kinnersly  v.  Mussen,  5  Taunton  264. 


64  SUPREME  COURT  [Pittsburgh, 

[Longstreth  and  Cook  r.  Gray.] 

On  that  question  there  was  great  diversity  of  opinion  ;  but  it  was 
admitted  by  the  whole  bench,  that,  on  principle,  it  was  the  same  as 
a  suit  brought  on  a  bond,  payable  by  instalments;  and  on  that 
ground  it  was  relied  that  the  judgment  should  be  entered  for  the 
penalty.  In  answer  to  an  objection  made  at  the  bar,  (for  the  case 
appears  to  have  been  examined  with  great  care)  the  chief  justice 
indicates  the  course  to  be  pursued,  in  collecting  the  interest  that 
might  thereafter  become  due.  It  has  been  also  objected,  says  that 
excellent  man  and  experienced  judge,  that  on  an  entry  of  judgment 
for  the  penalty,  the  defendant  will  be  debarred  from  the  benefit  of  a 
defence,  founded  on  circumstances  arising  after  the  commencement 
of  the  action.  But  that  is  not  this  case.  The  plaintiff,  in  the  first 
instance,  is  only  allowed  to  take  out  execution  for  the  sum  due,  when 
the  action  was  commenced  ;  he  must  move  the  court  for  future  execu- 
tions ;  and  then,  if  it  be  made  appear  that  the  defendant  has  a 
defence  other  than  that  which  has  been  tried,  and  arising  subse- 
quently to  the  suit,  the  court  have  it  in  their  power  to  see  that  justice 
shall  be  done.  It  is  extremely  convenient,  and  prevents  a  multipli- 
city of  suits,  to  enter  judgment  for  the  penalty  of  a  bond,  and  to 
give  permission  to  the  plaintiff  to  take  out  execution  for  the  different 
sums  as  they  become  due,  according  to  the  condition. 

It  is  said  that  the  chief  justice  refers  to  a  judgment  confessed  on 
a  warrant  of  attorney.  In  answer  to  this  I  have  to  remark,  that  the 
case  has  not  been  so  understood  ;  nor  can  it  be,  with  any  appearance 
of  plausibility,  so  construed.  Sparks  v.  Garrigues  is  not  a  judgment 
on  a  warrant  of  attorney,  but  is  a  judgment  for  the  penalty  of  a 
bond,  rendered  on  a  verdict ;  and  that  there  is  a  difference  between 
such  a  judgment  and  a  judgment  by  default,  passes  my  comprehen- 
sion. It  was  in  reference  to  the  case  itself  in  which  the  opinion  was 
delivered,  that  the  chief  justice  indicated  the  course  to  be  pursued, 
and  there  can  be  little  doubt,  that,  if  it  became  necessary,  that  course 
was  pursued.  It  is  unnecessary  to  contend  that  the  other  members 
of  the  court  expressly  concurred  in  the  reasoning  of  the  chief  justice. 
It  is  sufficient  for  my  purpose  that  they  did  not  dissent ;  and  that  the 
practice  has  been  in  conformity  to  it.  I  have  had  an  opportunity  of 
consulting  with  some  of  the  members  of  the  bar,  who  concur  with 
me,  that  such  has  been  the  understanding  of  the  bar  and  bench, 
and  that  the  practice  has  been  as  there  stated  since  the  case  in 
1  Bim.  In  addition  to  this,  we  have  the  experience  of  at  least  one 
other  of  the  members  of  the  court.  Supported,  then,  by  this  author- 
ity, the  plaintiff  asks  the  court  to  award  him  an  execution,  and  this 
we  refuse,  without  special  cause,  on  the  ground  of  some  decisions 
which  have  been  in  England,  on  the  stat.  of  9  and  1 1  William  3. 
I  would  not  wish  to  be  understood  as  denying  the  authority  of  that 
statute  in  Pennsylvania ;  it  has  been  adopted  by  our  courts  in  prac- 
tice ;  and  the  same  tribunal  which  gave  it  validity,  has  also  given 
it  a  construction,  and  on  this  the  plaintiff  relies.  It  will  be  conceded 
that  if  such  practice  exists,  it  would  be  unwise  to  disregard  it,  except 


Sept.  1832.]  OF  PENNSYLVANIA.  05 

[Longslreth  and  Cook  v.  Gray.] 

from  necessity.  To  use  the  strong  language  of  the  present  chief 
justice,  in  Bety's  appeal,  with  a  little  yariation,  nothing  but  the  pre- 
sence of  an  overwhelming  mischief  should  lead  us  to  disregard  settled 
constructions,  or  uniform  practice.  That  there  is  a  necessity  for  a 
change  remains  yet  to  be  proved.  A  plaintiff  applies  to  the  court 
for  leave  to  take  out  execution,  and  this  is  granted,  unless  notice, 
which  is  always  required,  be  given  the  defendant,  and  he  shows  a 
defence  other  than  that  which  has  been  tried,  and  arising  subse- 
quent to  the  suit.  If  the  defendant  has  a  defence,  the  court  simply 
refuses  to  interfere,  and  the  plaintiff  must  sue  out  a  scire  facias,  or 
suggest  breaches  on  the  rule,  in  conformity  to  the  statute.  It  is 
said  by  Chief  Justice  Tilghman,  that  this  is  a  convenient  practice, 
and  that  it  prevents  a  multiplicity  of  suits.  But  that  is  not  its  only 
recommendation.  I  speak  of  Pennsylvania,  not  of  England.  It  is 
a  safe,  speedy,  and  cheap  practice.  Why  should  a  plaintiff  be  put 
to  a  scire  facias,  when  there  is  no  defence  1  In  England,  the  answer 
is  obvious,  where  costs  are  almost  considered  as  a  vested  right.  But 
not  so,  and  I  hope  it  never  will  be  so,  in  Pennsylvania.  The  only 
effect  will  be  to  increase  costs,  and  incur  delay,  and  that  for  no  other 
purpose,  that  I  can  perceive,  than  to  assimilate  our  practice  to  the 
decisions  which  have  been  made  in  England,  under  the  statutes  of 
8  and  9  William.  No  complaint  has  yet  been  made  of  the  operation 
of  the  rule,  and  why  change  it  1  Independent  of  the  construction 
which  has  been  given  to  the  statute  of  William,  it  will  be  difficult  to 
give  a  reason,  none  has  been  attempted,  why  a  different  course 
should  be  pursued,  on  a  judgment  by  a  default,  and  on  a  verdict  on 
a  judgment  confessed.  The  trial  by  jury  is  secured  to  the  party  in 
the  one  case,  as  much  as  the  other.  If  he  has  a  defence  to  the  ori- 
ginal action,  he  should  suffer  judgment  by  default.  If  his  defence 
arises  afterwards,  he  is  also  equally  sure  of  a  trial  by  jury  ;  for,  it 
must  be  recollected,  that  the  court  will  not  grant  leave  to  take  out 
execution,  except  the  plaintiff  gives  the  defendant  notice  of  his  in- 
tended application,  and  this  for  the  purpose  of  giving  the  defendant 
an  opportunity  to  show  that  he  has  a  defence  against  the  plaintiff's 
demand. 


66  SUPREME  COURT  [Pittsburgh, 


Commonwealth  ex  rel.  Davis  against  Lecky. 

The  supreme  court  will  not  discharge  a  prisoner  from  a  commitment  upon  a  capias 
ad  satisfaciendum  issued  out  of  the  court  of  common  pleas. 

THE  relater,  Thomas  B.  Davis,  being  brought  before  the  court  on 
habeas  corpus,  objected  to  the  legality  of  his  arrest  on  a  capias  ad 
satisfaciendum,  returned  for  the  cause  of  his  detention,  that  it  was 
made  after  the  execution  had  been  superseded  by  a  writ  of  error. 
The  respondent,  who  was  the  sheriff  of  AHeghany  county,  testified 
that  Mr  Davis  came  into  his  office,  and  that  the  execution  was  put 
into  his  hands  in  order  to  know  what  arrangement  he  intended  to 
make  in  respect  to  it,  but  without  touching  his  person  with  a  view 
to  a  formal  arrest;  on  which  he  went  away,  but  shortly  returned  and 
gave  notice  that  a  writ  of  error  had  been  taken  and  bail  given  ;  not- 
withstanding which  he  was  taken  into  custody.  On  hearing  this, 
the  court  suggested  a  doubt  whether  the  habeas  corpus  were  the 
proper  remedy,  taking  for  granted,  what  was  by  no  means  clear,  that 
the  execution  of  the  process  was  irregular;  and  desired  the  matter  to 
be  spoken  to. 

Watts,  for  the  relater. 

The  habeas  corpus  act  of  1785  extends  to  commitments  on  civil 
process.  In  Hecker  v.  Jarrett,  3  Sinn.  404,  it  was  admitted  that  a 
judge  in  vacation  may  discharge  from  an  arrest  on  civil  process ; 
though  it  must  be  conceded,  the  cause  was  ultimately  decided  on 
the  ground  that  the  discharge  was  void  for  want  of  notice  to  the 
other  party.  If  a  single  judge  may  discharge,  why  may  not  the 
supreme  tribunal  of  the  state  1  In  the  Commonwealth  v.  Hambright, 

4  Serg.  fy  Rawle  149,  it  was  determined  that  where  the  court  which 
issues  the  process  has  refused  to  discharge  on  a  claim  of  privilege, 
the  supreme  court  is  not  bound  to  interfere ;  but  there  was  no  inti- 
mation of  a  difficulty  on  the  ground  that  the  prisoner  was  in  custody 
on  the  process  of  another  court.     On  the  contrary,  interference  was 
declined  expressly  because  the  common  pleas  had  already  determined 
the  right.     Respublica  v.  Coaler,  2  Yeates  349,  was  the  case  of  an 
arrest  on  mesne  process ;  and  to  be  sure  the  court  from  which  it 
issued  was  the  proper  one  to  say  whether  the  defendant  should  be 
delivered  on  common  bail.     That  is  a  very  different  case  ;  and  so  is 
that  of  the  Commonwealth  v.  Hambright,  which  depended  on  the  dis- 
cretion of  the  court,  and  in  that  respect  resembled  Ex  parte  Lawrence, 

5  Binn.  304,  in  which  it  was  decided  that  the  court  is  not  bound  to 
grant  a  habeas  corpus  where  the  matter  has  been  already  heard  on 


Sept.  1832.]  OP  PENNSYLVANIA.  67 

[Commonwealth  ex  rel.  Davis  v.  Lecky.] 

the  same  evidence  by  another  court.  But  the  habeas  corpus  is  a 
great  constitutional  remedy  ;  and  unless  it  be  held  to  extend  to  every 
case  of  illegal  confinement,  without  regard  to  the  character  of  the 
process,  it  will  not  have  the  enlarged  and  beneficial  operation  which 
the  legislature,  as  well  as  the  framers  of  the  constitution  intended. 

Fetterman,  for  the  respondent,  was  stopped  by  the  court. 

The  opinion  of  the  Court  was  delivered  by 

GIBSON,  C.  J. — The  habeas  corpus  is  undoubtedly  an  immediate 
remedy  for  every  illegal  imprisonment.  But  no  imprisonment  is 
illegal  where  the  process  is  a  justification  of  the  officer  ;  and  process, 
whether  by  writ  or  warrant,  is  legal  wherever  it  is  not  defective  in 
the  frame  of  it,  and  has  issued  in  the  ordinary  course  of  justice  from 
a  court  or  magistrate  having  jurisdiction  of  the  subject  matter,  though 
there  have  been  error  or  irregularity  in  the  proceedings  previous  to 
the  issuing  of  it.  Mackalleifs  Case,  9  Co.  68  a ;  1  Hole's  P.  C.  488. 
In  Cable  v.  Cooper,  16  Johns.  155,  it  was  accurately  said  by  the  judge 
who  delivered  the  opinion  of  the  court,  that  whether  the  judgment 
or  execution  be  voidable,  is  a  point  which  the  sheriff  is  never  per- 
mitted to  raise  ;  and  that  having  arrested  the  party,  he  is  bound  to 
keep  him  till  he  is  discharged  by  due  course  of  law.  To  the  same 
effect  is  Cameron  v.  Lightfoot,  2  Bl.  Rep.  1190,  and  2  Saund.  101  y, 
note  2,  where  the  authorities  are  collected.  If,  then,  the  officer  can 
not  allege  error  in  the  process,  how  can  the  prisoner  do  so  consist- 
ently with  the  common  law  principle,  that  the  proceedings  of  a  court 
of  competent  jurisdiction  are  not  to  be  reversed  or  set  aside  by  a  col- 
lateral proceeding,  where  redress  may  be  had  by  appeal,  writ  of  error, 
or  any  other  direct  means  of  review  1  That  this  principle  is  appli- 
cable in  all  its  force  to  the  habeas  corpus,  is  sustained  by  an  abun- 
dance of  authority.  In  Barnes's  Case,  2  Roll.  Rep.  157,  a  return 
that  the  prisoner  had  been  committed  in  execution  by  the  court  of 
admiralty  to  the  warden  of  the  cinque  ports  till  he  should  restore  an 
anchor  carried  away  by  him,  or  pay  the  warden  forty  pounds,  was 
held  sufficient,  though  the  proceedings  were  irregular.  So  in 
Bethel's  Case,  1  Salk.  348,  it  was  held  that  if  a  commitment  in  exe- 
cution be  wrong  in  form  only,  the  defendant  may  be  discharged  on 
habeas  corpus,  but  is  to  be  put  to  his  writ  of  error.  S.  C.  5  Mod.  19. 
And  The  King  v.  Elwell,  2  Stra.  79,  is  a  still  more  signal  instance. 
On  motion  to  discharge  the  prisoner  on  exceptions  to  the  commit- 
ment, which  was  a  conviction  of  forcible  entry  and  detainer,  the 
king's  bench  refused  to  enter  into  any  consideration  of  them  till  the 
commitment  were  regularly  before  them;  and  the  proceedings  hav- 
ing been  removed  by  certiorari  into  that  court  at  a  subsequent  term, 
were  first  quashed,  and  the  prisoner,  who  had  been  bailed  in  the 
mean  time,  was  then  discharged,  (a)  The  same  principle  seems  to 

(a)  See  also  Ex  parte  Gill,  7  East  376,  where,  on  a  habeas  corpus  for  an  apprentice 
committed  to  the  house  of  correction  on  a  conviction  by  two  magistrates,  the  court 


68  SUPREME  COURT  [Pittsburgh, 

[Commonwealth  ex  rel.  Davis  v.  Lecky.] 

have  been  recognized  by  our  own  court  in  Respublica  v.  Goaler,  2 
Yeates  349,  where  it  was  determined  that  the  supreme  court  can  not 
discharge  a  party  arrested  on  process  from  the  common  pleas ;  and 
in  the  Commonwealth  v.  Hambright,  4  Serg.  fy  Rawle  149,  we  refused 
to  consider  objections  to  an  arrest  upon  similar  process,  urged  on  the 
ground  of  privilege.  It  must  be  admitted  that  the  reasons  on  which 
the  court  proceeded  in  these  two  cases  are  not  very  fully  unfolded  ; 
but  the  decisions  are  entirely  consistent  with  the  rule  as  I  have  stated 
it,  and  I  know  of  none  else  on  which  they  can  be  sustained.  They 
may,  I  presume,  be  considered  as  in  point;  for  that  the  arrest  was  on 
mesne  instead  of  final  process,  can~scarce  be  thought  a  material  dif- 
ference. Hecker  v.  Jarrett,  3  Binn.  409,  which  is  supposed  to  bear 
the  other  way,  was  distinctly  decided  on  another  ground ;  and  though 
the  power  to  discharge  from  an  execution  seems  to  have  been  recog- 
nized by  the  chief  justice,  there  is  no  reason  to  think  he  had  in  view 
an  execution  merely  voidable.  Of  the  power  to  discharge  from  a 
void  execution  no  one  ever  doubted  ;  and  his  remark  is  in  fairness 
applicable  to  no  other.  There  are,  I  believe,  few  decisions  on  the 
point  in  our  sister  states.  In  New  York  it  seems  to  be  doubted 
whether  their  habeas  corpus  act  extends  to  arrests  on  civil  process ; 
and  their  judges  have  for  that  reason,  as  well  as  on  general  prin- 
ciples, refused  to  discharge  in  some  instances  on  exceptions  to  its 
regularity;  as  in  Cable  v.  Cooper  already  cited.  But  in  the  Bank  of 
the  United  States  v.  Jenkins,  18  Johns.  308,  though  it  was  held  that 
the  habeas  corpus  act  did  not  extend  to  the  supreme  court  in  term 
time,  yet  no  doubt  was  entertained  of  the  common  law  power  of  the 
court  to  relieve  from  all  illegal  imprisonments,  whether  in  civil  or  in 
criminal  cases ;  and  it  was  expressly  determined  that  a  habeas  corpus 
is  not  the  remedy  for  a  defendant  imprisoned  on  a  capias  ad  satis- 
faciendum  which  has  issued  irregularly,  the  proper  course  being  an 
application  to  the  court  from  which  it  has  issued.  After  this  explicit 
recognition  of  the  principle  in  a  case  exactly  like  the  one  before  us, 
it  is  scarce  necessary  to  refer  to  Yates's  Case,  4  Johns.  318,  in  which 
it  was  determined  that  the  supreme  court  of  that  state  can  not  dis- 
charge from  a  commitment  by  the  chancellor  for  a  contempt.  Any 
other  rule  would  present  some  very  curious  judicial  phenomena. 
By  an  inversion  of  their  functions,  a  single  judge  in  vacation,  and  of 
perhaps  an  inferior  court,  would  be  legally  competent  to  rejudge  the 
judgments  of  the  highest  tribunal  in  the  land ;  and  the  supreme 
court  of  the  state,  instead  of  proceeding  systematically  in  the  correc- 
tion of  errors,  would  be  called  upon  to  produce  its  results  by  a  new 
and  shorter  process,  while  in  the  guise  of  writs  of  habeas  corpws,  it 
would  be  flooded  with  appeals  from  the  decisions  of  the  other  courts 
on  questions  of  bail.  The  rule  is  therefore  absolutely  necessary  to 
prevent  judicial  proceedings  from  running  into  a  state  of  incurable 
disorder ;  and  an  application  of  it  to  the  relater's  case,  is  fatal  to  his 

refused  to  consider  circumstances  laid  before  them  by  affidavit,  which  might  have 
been  made  matter  of  defence  before  tlio  magistrates. 


Sept.  1832.]  OF  PENNSYLVANIA.  69 

[Commonwealth  ex  rel.  Davis  v.  Lecky.] 

claim  to  relief  in  this  particular  way.     Every  court  is  the  proper  tri- 
bunal to  judge  of  the  regularity  or  abuse  of  its  process ;   and  the 
remedy  for  the  alleged  irregularity  here,  is  an  application  to  the 
court  from  which  the  process  issued. 
The  relater  was  remanded. 


Snively  against  Luce. 

An  unexecuted  parol  partition  is  void ;  and  it  is  still  parol  when  made  by  the 
intervention  of  agents  acting  by  virtue  of  a  parol  authority,  though  their  act  be 
evinced  by  a  writing  under  seal. 

ERROR  to  the  common  pleas  of  Butler  county. 

This  was  an  action  of  ejectment  brought  by  Henry  Snively  against 
Stephen  Luce,  for  a  tract  of  land  in  Butler  county  ;  upon  the  trial  of 
which  the  defendant,  in  order  to  maintain  the  issue  on  his  part, 
offered  in  evidence  certain  depositions  to  prove,  that  John,  Samuel, 
David,  and  Robert  Cunningham,  heirs  at  law  of  James  Cunningham 
deceased,  having  been  tenants  in  common  of  certain  lands,  includ- 
ing that  in  dispute,  had,  by  parol,  appointed  four  individuals  to  make 
a  division  and  partition  of  the  said  lands  between  them  ;  that  the 
persons  thus  appointed  went  upon  the  ground,  and  made  the  parti- 
tion, and  awarded  to  each  of  the  said  tenants  in  common,  a  particu- 
lar part;  and  to  accompany  this,  proof  with  the  award,  in  writing, 
signed  by  the  men,  acknowledged  before  a  justice  of  the  peace,  and 
recorded.  It  did  not  appear  that  separate  possession  was  taken,  in 
pursuance  of  the  partition.  To  this  evidence  the  plaintiff  objected, 
upon  the  ground  that  a  partition  made  by  parol  authority  was  void. 
The  court  below  overruled  the  objection,  and  admitted  the  evidence  ; 
to  which  exception  was  taken,  and  the  same  question  was  here 
argued  by 

W.  W.  Fetterman,  for  plaintiff  in  error. 
Gilmore,  for  defendant  in  error. 

Per  Curiam. — An  unexecuted  parol  partition  is  void ;  and  it  is 
still  parol  when  made  by  the  intervention  of  agents,  pursuant  to  a 
parol  authority,  though  their  act  be  evinced  by  a  writing  under  seal. 
That  can  give  it  no  additional  authority  ;  and  the  whole  being  irre- 
levant, and  void,  ought  not  to  have  gone  to  the  jury. 

Judgment  reversed,  and  a  venire  de  novo  awarded. 


70  SUPREME  COURT  [Pittsburgh, 


Campbell  against  Galbreath. 

0 

In  order  to  establish  the  ownership  of  a  warrant  in  the  name  of  another,  it  is  com- 
petent for  a  plaintiff,  in  ejectment,  to  prove  that  they  under  whom  he  claims,  took  it 
out  of  the  office  ;  put  it  into  the  hands  of  the  deputy  surveyor ;  employed  chain  car- 
riers, &c. ;  procured  the  survey  to  be  made,  and  paid  the  expense  thereof:  without 
first  proving  that  they  had  paid  the  purchase  money  for  the  warrant. 

A  plaintiff  having  thus  established  the  ownership  of  a  warrant  to  be  in  three  indi- 
viduals, who  were  partners,  it  is  competent  for  him  to  give  in  evidence  the  declara- 
tions of  one  of  them,  made  at  an  early  period,  that  another  of  the  firm  was  duly 
authorized  to  act  for  himself  and  his  partners,  in  procuring  a  settlement  of  the  land 
to  be  made :  and  after  this  was  proved,  an  agreement,  in  writing,  between  such  part- 
ner, and  one  who  contracted  to  settle,  may  be  given  in  evidence :  the  settlement  not 
having  been  made  by  such  contracting  party,  it  is  competent  to  give  in  evidence  his 
declarations,  made  at  the  time,  that  ho  contracted  for  his  son,  who  did  make  the 
necessary  settlement  and  improvement. 

An  action  of  ejectment  may  be  maintained  in  the  name  of  the  warrantee,  although 
he  may  have  no  beneficial  interest  in  the  land,  and  may  not  have  known  of  the  insti- 
tution of  the  action. 

A,  having  procured  a  warrant  for  land  "  lying  north  and  west  of  the  rivers  Ohio 
and  Alleghany,  and  Conewango  creek,"  in  pursuance  of  the  act  of  3d  April  1792, 
did  not  comply  with  the  conditions  of  that  act,  in  making  a  settlement  within  two 
years;  but,  after  the  lapse  of  that  time,  he  commenced  a  settlement  and  improve- 
ment. B,  immediately  after,  also  commenced  a  settlement  and  improvement  upon 
the  same  land,  which  he  continued,  and  subsequently  obtained  a  vacating  warrant 
from  the  commonwealth,  reciting  the  fact  that  A  had  not  complied  with  the  terms 
of  the  act  In  an  action  of  ejectment  between  parties  holding  these  conflicting  titles, 
it  was  held,  that  A's  previous  settlement,  although  not  within  the  two  years,  gave 
him  the  better  title  :  and  the  fact  of  his  settlement  not  having  been  persevered  in, 
was  sufficiently  accounted  for  by  the  interruption  and  threats  of  B. 

WRIT  of  error  to  the  common  pleas  of  Mercer  county. 

This  was  an  action  of  ejectment  by  Josiah  Galbreath  against  Tho- 
mas Campbell,  for  four  hundred  acres  of  land,  lying  north  and  west 
of  the  river  Alleghany  and  Conewango  creek. 

The  plaintiff  gave  in  evidence  a  warrant  to  Josiah  Galbreath,  for 
four  hundred  acres,  dated  31st  March  1794,  and  a  survey  in  pursu- 
'flnce  thereof,  made  26th  October  1795,  embracing  the  land  in  dis- 
pute :  that  an  improvement  and  residence  were  made  on  the  land  by 
George  W.  Fell,  as  early  as  the  spring  of  1798,  but  which  were  com- 
menced more  than  two  years  after  the  22d  December  1795,  when 
the  hostility  of  the  Indians  ceased  to  prevent  settlement.  The 
plaintiff  then  offered  to  prove,  that  the  warrant  in  the  name  of  Jo- 
siah Galbreath)  was  taken  out  by  Walker,  Probst  and  Lodge,  who 
put  it  into  the  hands  of  the  surveyor,  employed  the  chain  carriers, 
and  paid  all  the  expenses  of  making  the  survey.  The  defendant 
objected  to  this  evidence,  and  the  objection  was  overruled  and  ex- 
ception taken.  The  plaintiff  then  offered  to  prove  the  declarations 
of  Lodge,  made  in  1797,  and  often  after,  that  John  Walker  was  a 
partner  of  his  and  Probst  in  this  and  other  lands,  and  was  the  agent 


Sept.  1832.]  OF  PENNSYLVANIA.  71 

[Campbell  v.  Galbreath.] 

of  the  firm  of  Walker,  Probst  and  Lodge,  with  authority  to  make 
contracts  for  the  settlement  and  sale  of  the  land.  This  evidence 
was  also  objected  to  by  the  defendant ;  the  objection  was  overruled, 
and  exception  taken.  The  plaintiff  then  offered  in  evidence  an 
article  of  agreement  between  John  Walker  and  William  Fell,  by 
which  the  title  of  Walker,  Probst  and  Lodge  was  vested  in  the  said 
William  Fell ;  this  evidence  was  also  objected  to  ;  the  objection  was 
overruled,  and  exception  taken  by  the  defendant.  The  plaintiff  then 
further  offered  to  prove  the  declarations  of  William  Fell  and  George 
W.  Fell,  made  at  the  time,  that  the  settlement  and  improvement 
made  by  George  W.  Fell,  was  under  his  father,  and  in  pursuance  of 
the  agreement  with  Walker.  This  evidence  was  also  objected  to 
by  the  defendant,  and  the  objection  was  overruled,  and  exception 
taken. 

The  defendant  then  proved  that  a  settlement  and  improvement 
were  made  on  another  part  of  the  land  in  dispute,  in  1798  or  1799, 
but  after  the  improvement  of  George  W.  Fell  had  commenced,  by 
•Alexander  Hamilton,  who  sold  his  right  to  Thomas  Campbell,  the 
defendant,  in  the  fall  of  1799  or  spring  of  1800.  Campbell  took 
possession  of  the  land,  and  continued  the  settlement  and  improve- 
ment. On  the  26th  January  1805,  Campbell  procured  a  vacating 
warrant  to  himself,  for  four  hundred  acres  of  land,  interest  from  1st 
April  1798,  reciting  the  warrant  to  Josiah  Galbreath,  and  vacating 
it  for  default  of  settlement ;  a  survey  was  made  in  pursuance  thereof 
of  three  hundred  and  eighty-four  acres  on  the  8th  March  1805,  and 
a  patent  issued  on  the  26th  August  1806,  to  Thomas  Campbell. 
The  defendant  then  gave  evidence  to  prove,  that  no  improvement  or 
settlement  of  the  land  had  ever  been  made  by  Josiah  Galbreath. 
The  defendant  now  called  upon  the  plaintiff's  counsel  to  say  for 
whose  use  this  suit  was  brought.  Mr  Banks  replied,  that  he  ap- 
peared for  George  W.  Fell ;  Mr  Bredin  replied  that  he  appeared  for 
the  heirs  of  Lodge ;  and  Mr  Foster,  who  was  also  counsel  for  the 
plaintiff,  declined  to  make  any  reply.  The  defendant's  counsel  then 
proposed  to  examine  Mr  Foster,  for  the  purpose  of  showing,  that  no- 
one  was  employed  by  Josiah  Galbreath  to  bring  the  suit,  and  that 
such  a  person  was  not  known  to  them.  The  plaintiffs  objected  to 
this  evidence,  and  the  objection  was  sustained  for  the  following  rea- 
son, assigned  by  the  court.  "  The  evidence  is  immaterial,  inas- 
much as  the  counsel,  throughout  the  trial,  have  said,  that  the  suit 
is  in  the  name  of  Josiah  Galbreath,  the  warrantee,  whom  they  con- 
sider as  the  trustee  for  those  who  have  the  real  interest."  To  this- 
opinion  exception  was  taken  by  the  defendant. 

Some  proof  was  then  given  by  the  plaintiff  of  angry  threats  made 
by  Hamilton  to  Fell,  in  1799  ;  what  he  would  to  him,  if  he  caught 
him  on  the  land  in  dispute.  The  plaintiff  requested  the  court  to 
charge  the  jury  on  the  following  points  : 

1.  That  the  entry  made  by  Thomas  Campbell,  and  those  under 
whom  he  claims,  into  the  land  granted  by  warrant,  and  surveyed  to 


72  SUPREME  COURT  [Pittsburgh, 

[Campbell  v.  Galbreath.] 

the  plaintiff,  was  tortious,  and  not  rightful,  and  that  he  can  derive 
no  benefit  from  this  tortious  act. 

2.  That  a  vacating  warrant,  afterwards  granted  to  Thomas  Camp- 
bell, for  this  land,  does  not,  by  relation,  make  his  entry  rightful. 

3.  That  the  entry  and  settlement  of  Thomas  Campbell,  and  those 
under  whom  he  claims,  on  the  land  surveyed  lo  tne  plaintiffs  in 
pursuance  of  his  warrant,  excuse  any  settlement  on  the  part  of  said 
plaintiff,  and  do  operate  and  inure  to  his  use,  as  if  made  by  himself, 
or  those  claiming  under  him. 

4.  That  Alexander  Hamilton,  (if  the  jury  believe  the  evidence) 
having  prevented  those  claiming  under  the  plaintiff,  by  threats  of 
violence,  from  making  and  continuing  a  settlement  on  the  land, 
neither  he,  nor  those  claiming  under  him,  can  take  advantage  of  the 
want  of  settlement. 

And  the  defendant  requested  the  court  to  charge  the  jury, 

1.  That  in  order  to  make  the  title  of  the  plaintiff  good,  it  was 
necessary  for  him  to  make,  or  cause  a  settlement  to  be  made  on  the 
land,  within  two  years  after  the  pacification  with  the  Indians,  22d 
December  1795. 

2.  That  in  default  of  such  settlement,  the  state  had  a  right  to 
issue  a  vacating  warrant  to  another  actual  settler. 

3.  That  if  the  jury  believe  that  George  W.  Fell  entered  on  the 
land,  for  the  purpose  of  making  an  actual  settlement  for  the  use  of 
the  warrant  holders,  after  the  entry  of  another  adverse  settler,  yet  if 
he  did  not  remain  for  the  time,  and  clear  the  quantity  of  land  re- 
quired by  law,  it  is  such  a  settlement  as  could  be  abandoned ;  and  if 
he  did  not  pursue  his  settlement  with  reasonable  diligence,  the  party 
under  whom  the  defendant  claims  in  this  case  had  a  right  to  hold 
possession,  complete  his  settlement,  and  take  out  a  vacating  warrant. 

4.  That  the  testimony  of  Benjamin  Stokeley  does  not  show  the 
interest  in  the  warrant  to  be  in  Benjamin  Lodge ;  and  that  any  con- 
tract made  by  him,  or  any  one  under  his  authority,  does  not  show 
and  establish  a  contract  under  the  warrant,  and  that  a  settlement 
made  under  such  a  contract,  is  not  made  under  Josiah  Galbreath, 
but  adverse  to  him,  and  will  not  tiffed  the  right  of  the  vacating 
warrant. 

5.  That  if  the  jury  believe  that  Josiah  Galbreath  never  paid  the 
purchase  money  for  the  warrant,  never  received  it  from  the  land 
office,  or  had  it  in  possession,  or  exercised  any  acts  of  ownership  over 
it,  he  is  not  such  an  owner  or  trustee  as  can  support  an  ejectment, 
and  has  not,  and  never  had,  any  right  either  legal  or  equitable  to 
the  land. 

6.  That  if  the  jury  believe  that  Josiah  Galbreath  is  a  mere  ficti- 
tious person,  this  ejectment  cannot  be  supported  in  his  name. 

7.  That  if  the  jury  believe  that  the  settler  entered  and  commenced 
his  settlement  with  the  view  and  intent  to  follow  up  his  entry,  by 
obtaining  a  vacating  warrant,  the  warrant  afterwards  issued  con- 
firmed his  original  entry,  and  made  it  legal  and  valid. 


Sept.  1832.]  OF  PENNSYLVANIA.  73 

[Campbell  v.  Galbreath.] 

Shippen,  President,  was  of  opinion  that  the  evidence  contained  in 
the  several  bills  of  exception  should  have  been  rejected,  but  the  same 
having  been  received,  except  the  last,  by  the  associates,  he  was  of 
opinion  the  plaintiff  was  entitled  to  recover,  and  so  instructed  the 
jury,  who  found  a  verdict  accordingly.  To  which  opinion  exception 
was  taken  by  the  defendant. 

The  opinions  of  the  court,  admitting  and  rejecting  the  evidence 
contained  in  the  several  bills  of  exception,  and  in  the  answers  to  the 
several  points  of  the  plaintiff  and  defendant,  were  assigned  for  errors, 
and  argued  by 

Pearson  and  Jlyres,  for  plaintiff  in  error. 
J.  Banks,  for  defendant  in  error. 

The  opinion  of  the  Court  was  delivered  by 

KENNEDY,  J. — The  first  error  assigned,  is  an  exception  to  the 
opinion  of  the  court  below,  in  admitting  the  counsel  for  the  defendant 
in  error,  who  was  the  plaintiff  below,  "  to  prove,  that  Walker,  Lodge 
and  Probst  took  out  the  warrant  given  in  evidence  by  the  defendant 
in  error,  with  other  warrants,  put  them  into  the  hands  of  the  deputy 
surveyor,  procured  the  surveys  to  be  made,  and  paid  the  deputy  sur- 
veyor, employed  chain  carriers,  blasers,  &c.,  and  paid  them."  This 
evidence  was  offered  to  show  that  Walker,  Lodge  and  Probst  were 
the  owners  of  the  warrant,  and  to  rebut  the  presurnpiion  of  law,  that 
every  warrant  granted  for  land  belongs  to  the  warrantee  therein 
named.  I  think  that  the  evidence  was  admissible  for  this  purpose. 
It  is  objected,  that  inasmuch  as  it  was  a  warrant,  and  not  a  loca- 
tion, that  the  purchase  money  must  have  been  paid  by  the  party 
taking  it  out  of  the  land  office,  and  that  therefore  the  offer  ought  to 
have  been  accompanied  with  proof  of  their  having  paid  the  purchase 
money  on  the  warrant,  otherwise  the  proof  offered  was  still  deficient. 
This  objection  appears  to  be  rather  critical;  for  the  offer  in  its  terms 
was,  "  to  prove  that  Walker,  Lodge  and  Probst  took  out  the  warrant." 
Now  if  this  could  not  be  done  without  their  paying  the  purchase- 
money  for  the  land,  does  not  the  offer  necessarily  imply  the  offer  of 
proof,  among  other  things,  that  they  had  paid,  &c.  1  But  if  it  were 
not  so  implied,  the  evidence  was  still  admissible;  and  in  the  absence 
of  all  rebutting  circumstances,  might  be  sufficient  to  satisfy  the  jury 
that  Walker,  Lodge  and  Probst  were  the  owners  of  the  warrant. 
Evans  v.  Nargong,  2  Sinn.  55;  Cox  v.  Grant,  1  Yeates  166  ;  Taylor 
v.  Ewing,  2  Yeates  119.  In  Cox  v.  Grant  the  court  speak  of  appli- 
cations and  warrants  indiscriminately,  and  make  no  distinction  as  to 
the  nature  of  the  proof  that  is  required  or  admissible  to  prove  the 
ownership  thereof  to  be  in  a  person  different  from  the  locatee  or  war- 
rantee named  in  the  application  or  warrant. 

Superintending  the  survey  or  paying  the  fees,  has  generally  been 
deemed  sufficient  evidence  of  ownership  of  an  application,  unless  re- 
butted by  evidence  that  the  person  so  superintending  or  paying  acted 


74  SUPREME  COURT  [Pittsburgh, 

[Campbell  v.  Galbreath.] 

as  agent;  or  unless  possession  or  some  act  of  ownership  appeared  in 
favour  of  the  person  in  whose  name  the  application  was  entered. 
Cluggage  v.  Duncan,  I  Serg.  fy  Rawle  117.  Now,  since  in  practice, 
as  well  as  in  the  nature  of  the  transaction  itself,  the  same  acts  are  as 
strongly  indicative  of  ownership  in  the  case  of  a  warrant  as  HI  that 
of  a  location,  it  appears  to  me  that  the  court  was  right  in  .overruling 
the  objection.  Even  the  payment,  of  the  purchase  money  into  the 
treasury  of  the  state,  is  far  from  being  conclusive  evidence  that  the 
person  by  whose  hand  it  was  paid  is  the  owner  of  the  warrant;  for 
the  money  may  have  been  furnished  to  him  by  another,  for  whose 
use  he  undertook  to  pay  it  in.  Although,  from  the  late  practice  of 
the  land  office,  in  keeping  an  account  of  the  names  of  the  persons 
respectively  by  whom  the  moneys  are  paid  for  land  warrants,  it  may 
be  that  in  most  cases  it  would  appear  from  their  books  by  whom  it 
was  paid  or  handed  into  the  office;  yet  I  have  no  doubt  but  that 
there  are  many  cases  in  which  it  does  not  appear;  and  to  establish 
the  rule  contended  for  by  the  plaintiff  in  error,  would  compel  the 
party,  as  often  as  that  should  happen,  to 'be  at  the  expense  and 
trouble  of  getting  some  one  from  the  land  office  to  attend  on  the  trial 
as  a  witness,  to  prove  that  it  did  not  appear  upon  the  books  or 
accounts  kept  in  the  land  office  from  whose  hand  the  purchase  money 
for  the  warrant  had  been  received  ;  or  otherwise  to  have  his  deposi- 
tion taken  under  a  rule  of  court  for  that  purpose,  which  I  think  has 
never  been  required,  nor  yet  introduced  into  practice.  I  say  it  would 
impose  this  burthen  upon  the  party;  because  a  certificate  from  the 
officer  in  whose  care  such  books  were  to  that  effect,  being  merely  of 
a  negative  character,  would  not,  as  I  conceive,  be  admissible  in  evi- 
dence. Besides,  such  an  entry  in  the  books,  even  if  it  existed,  would 
only  be  presumptive  evidence  at  best,  and  corroborating  or  rebutting, 
just  as  it  might  happen  to  show  that  the  purchase-money  was  paid 
by  the  party  claiming  to  be  the  owner  of  the  warrant,  or  to  have 
been  paid  by  some  other.  If  it  showed  the  former,  it  would  be  cor- 
roborating, when  preceded  by  evidence  of  the  same  party  having 
superintended  and  directed  the  surveying  of  the  land,  and  of  his 
having  paid  the  fees  and  expenses  of  the  same;  but  if  it  showed  the 
latter,  it  would  then  be  rebutting  testimony,  and  might  be  produced 
by  either  party,  accordingly  as  he  thought  it  would  answer  his  pur- 
pose ;  for  being  a  public  registry,  it  is  alike  accessible  to  either  party. 
I  believe  it  has  been  customary  at  the  land  office,  upon  the  payment 
of  the  purchase  money  for  land  warrants,  or  taking  them  out,  to  get 
receipts  by  the  persons  paying;  and  why  not  require  this  evidence-,  or 
the  oath  of  the  party  that  he  never  obtained  such  receipt,  or  if  he 
did,  that  it  was  either  lost  or  destroyed,  instead  of  requiring  a  certi- 
ficate from  the  officer  having  in  charge  the  books  of  the  land  office, 
as  a  receipt  would  not  only  show  the  name  of  the  person  by  whom 
the  money  was  paid,  which  is  the  most  that  a  certified  copy  from  the 
books  would  do  in  any  case,  but  the  production  of  such  receipt  by 
the  party  would  be,  in  addition,  evidence  of  his  identity  ? 


Sept.  1832.]  OF  PENNSYLVANIA.  75 

[Campbell  v.  Galbreath.] 

The  second  error  is  an  exception  to  the  opinion  of  the  court  below, 
in  permitting  the  plaintiff  there  to  prove  by  Andrew  Christy,  that  he 
heard  Benjamin  Lodge,  who  was  claimed  to  have  been  a  part  owner 
of  the  warrant  say,  that  "whatever  John  Walker  (who  was  also 
claimed  to  be  a  part  owner  of  the  warrant)  did  or  would  do,  he 
(Lodge)  would  be  bound  by;  and  that  Walker  was  a  partner  with 
himself  and  Probst  in  the  land  ;  that  he  (witness)  heard  Lodge  say 
this  in  1797  and  frequently  since,  as  late  as  1800,  both  before  and 
after  the  article  with  William  Fell" 

As  evidence  had  been  given  that  the  deputy  surveyor  was  em- 
ployed by  Lodge  to  make  the  survey,  and  it  had  been  made  upon  his 
credit,  and  that  he  had  actually  paid  sixty  dollars  towards  the  sur- 
veying fees  of  this  and  other  lauds,  it  seems  to  me  that  these  decla- 
rations of  Lodge  were  admissible  and  properly  received,  at  least  for 
the  purpose  of  proving  the  authority  under  which  Walker  acted  in 
making  the  agreement  with  William  Fell  to  settle  on  and  improve 
the  land  in  dispute.  In  this  point  of  view  it  cannot  be  said  to  have 
been  admitted  in  contravention  of  the  statute  against  frauds  and 
perjuries,  as  has  been  contended  by  the  counsel  for  the  plaintiff  in 
error ;  because  it  is  not  to  be  considered  as  evidence  of  a  transfer  of 
any  right  or  interest  in  the  land,  but  of  an  authority  to  settle  and 
improve,  as  required  by  the  act  of  1792,  and  to  make  those  acts, 
when  done,  the  acts  of  Benjamin  Lodge  himself,  according  to  the 
maxim  of  law,  qui  facit  per  alium  facit  per  se.  There  is  certainly 
nothing  in  this  statute  which  forbade  Lodge  from  hiring  a  man  by 
parol  for  a  certain  sum  of  money,  or  from  employing  another  by  parol 
to  have  it  done  by  any  .one  for  him,  that  is,  to  go  on  and  build  a 
dwelling  house  upon  the  land,  take  possession  of  it  with  a  family, 
make  it  the  place  of  their  abode,  clearing  and  fencing  the  requisite 
quantity  of  land,  and  residing  thereon  for  the  space  of  five  years ;  in 
short,  to  do  every  thing  required  by  the  act  of  assembly  of  the  3d  of 
April  1792.  It  can  not  be  doubted,  I  apprehend,  but  that  a  settle- 
ment, improvement  and  residence  obtained  upon  the  land  in  this  way 
would  be  a  compliance  with  the  terms  of  the  act,  and  would  entitle 
the  warrantee  to  hold  the  land  absolutely  in  fee  simple.  The  eon- 
tract  would  be  executory  and  binding ;  for  our  statute  against  frauds 
does  not  annul  or  make  void  any  contract  that  is  otherwise  lawful ; 
and  a  personal  action  may  be  maintained  for  the  breach  of  it.  Bell 
v.  Anderson,  4  Doll.  152;  Ewing  v.  Tees,  1  Binn.  450. 

The  third  error,  which  is  an  exception  to  the  opinion  of  the  court 
below,  under  which  the  agreement  made  with  William  Fell,  by 
Walker,  was  admitted  to  be  given  in  evidence,  has  been  already 
answered ;  and  that  the  opinion  of  the  court  below,  in  this  behalf, 
was  right,  has  been  shown  in  the  answer  just  given  to  the  second 
error. 

The  fourth  error,  which  is  an  exception  to  the  opinion  of  the  court 
in  admitting  the  declarations  or  admissions  of  William  Fell  in  evi- 
dence, to  show  that  it  was  for  his  son  George  W.  Fell  that  he  con- 


76  SUPREME  COURT  [Pittsburgh, 

[Campbell  v.  Galbreath.] 

tracted  with  Walker;  or  to  show,  in  other  words,  that  he,  William 
Fell,  under  the  contract  which  he  had  made  with  Walker,  had  em- 
ployed his  son  George  to  make  the  settlement  and  improvement  upon 
the  land.  It  appears  to  me,  that  it  was  competent  for  William  Fell 
to  do  this,  without  having  any  writing  with  George  on  the  subject ; 
and  that  parol  evidence  of  his  admissions  of  the  fact  of  his  having 
made  the  contract  for  the  benefit  of  his  son  George,  or  of  his  having 
given  the  benefit  of  it  to  him,  so  as  to  connect  the  acts  of  George 
upon  the  land  with  the  right  of  Lodge  and  others,  under  the  warrant, 
was  properly  admitted  in  evidence,  upon  the  same  principle  that  the 
evidence  noticed  in  the  second  bill  of  exception  was  received. 

The  fifth  error  is,  in  principle,  the  same  with  the  second  and  fourth, 
and  cannot  be  supported.  The  court  below  was  right  in  admitting 
the  testimony. 

The  sixth  error  is  an  exception  to  the  opinion  of  the  court  below, 
in  overruling  the  offer  of  the  counsel  for  the  plaintiff  in  error,  who 
proposed  "  to  examine  Samuel  B.  Foster,  Esq.,  one  of  the  counsel 
for  the  defendant  in  error,  for  the  purpose  of  showing  that  they  had 
not  been  employed  by  Josiah  Galbreath  to  bring  this  suit ;  that  they 
never  had  any  communication  with  him,  and  never  knew  any  such 
person."  It  is  difficult  to  conceive  what  occasion  there  was  for 
giving  such  testimony ;  or  how,  if  given,  it  could  have  availed  the 
plaintiff  in  error.  It  was  not  pretended  by  the  counsel  for  the  plain- 
tiff Tbelow  that  Josiah  Galbreath  was  the  real  plaintiff  in  the  cause  ; 
that  he  had  any  interest  in  the  land  ;  that  they  or  any  of  them  were 
employed  by  him,  or  knew  any  such  person.  Such  evidence,  had  it 
been  given,  would  not  have  proved  that  there  was  no  such  person, 
or  that  Josiah  Galbreath  was  a  fictitious  name.  Beside,  it  may  be 
doubtful  whether  evidence  to  prove  that  there  was  no  such  person 
in  being  as  Josiah  Galbreath — the  only  name  as  plaintiff  below  on 
record,  would  have  been  admissible  under  the  general  issue,  which 
was  the  one  joined  in  this  case ;  such  evidence  would  only  have 
tended  to  abate  the  suit,  and  perhaps  ought,  therefore,  to  have  been 
pleaded,  or,  at  least,  a  previous  notice  to  have  been  given  of  it,  in 
order  to  prevent  surprise.  Our  action  of  ejectment  is  in  no  respect 
a  fiction  now,  as  it  is  in  England.  And  although  our  act  of  assem- 
bly on  the  subject  directs  that  the  plea  shall  be  "  not  guilty,"  yet,  it 
may  be,  that  the  legislature  only  intended  to  direct  as  to  the  plea  in 
bar  that  should  be  put  in  to  this  action,  and  to  leave  pleas  in  abate- 
ment as  at  common  law  ;  and  the  clause  of  the  act  which  directs 
that  the  plea  shall  be  "  not  guilty,"  when  taken  in  connexion  with 
the  first  section  of  the  act,  would  seem  to  indicate  something  of  this 
kind  ;  but  as  it  is  unnecessary  to  decide  this  question  here,  I  do  not 
wish  to  be  understood  as  giving  a  decided  opinion  upon  it.  See 
1  Comyn's  Dig.  tit.  Abatement,  E.  16  ;  WUs.  302 ;  19  Johns.  308 ; 
1  Chilly's  PL  435,  436. 

But  if  there  were  such  a  person  in  being  as  Josiah  Galbreath,  I  do 
not  see  that  the  defendant  below  could  have  derived  any  advantage 


Sept.  1832.]  OF  PENNSYLVANIA.  77 

[Campbell  v.  Galbreath.] 

from  proving  that  Josiah  Galbreath  had  never  employed  the  counsel, 
or  any  of  them,  to  bring  this  suit ;  or,  in  short,  that  he  had  never 
authorized  the  suit  to  he  brought,  and  knew  nothing  about  it.  If 
such  testimony  could  have  had  any  bearing  upon  the  cause  at  all, 
it  would  have  been  rather  to  support  the  action  ;  as  it  would  have 
tended  to  show  that  Josiah  Galbreath  was  a  mere  trustee,  and  that 
his  name,  according  to  an  ancient  practice  at  the  land  office  in 
taking  out  warrants,  had  been  used  by  Lodge,  or  whoever  took  out 
the  warrant  in  this  case.  It  would,  at  least,  have  been  perfectly 
consistent  with  the  claim  set  up  by  Lodge's  heirs  to  the  land ;  that 
is,  that  Lodge  was  owner  or  part  owner  of  the  warrant,  and  caused 
the  settlement  to  be  commenced  upon  the  land.  But  if  the  defend- 
ant below  had  shown  that  there  was  such  a  person  as  Josiah  Gal- 
breath; that  he  was  the  real  owner  of  the  warrant,  and  no  transfer 
of  it  appearing  to  have  been  made  by  him  to  Lodge,  Walker  and 
Probst,  or  any  of  them  :  it  is  manifest,  that,  for  want  of  even  an  effort 
upon  the  part  of  Galbreath  to  make  a  settlement  at  any  time  what- 
ever, it  would  have  been  difficult  to  have  sustained  this  action.  I, 
therefore,  cannot  perceive  any  good  reason  why  this  evidence  should 
have  been  received,  and  think  the  court  below  was  right  in  reject- 
ing it. 

There  were  four  points  submitted  by  the  counsel  of  the  plaintiffs 
below,  and  seven  by  the  counsel  of  the  defendants,  to  the  court,  to 
be  answered.  The  answers  of  the  court  upon  these  points,  together 
with  some  things  contained  in  the  charge  of  the  court  to  the  jury, 
have  been  further  assigned  for  error ;  but,  many  of  them  involve 
the  same  question  ;  and  all  that  have  any  relation  to  this  case  may 
be  considered  by  way  of  answers  to  the  following  questions  : 

First;  Could  the. jury  reasonably  infer  from  the  testimony,  that 
Benjamin  Lodge  was  owner,  or  part  owner  with  Walker  and  Probst, 
of  the  warrant  in  the  name  of  Josiah  Galbreath  ? 

Second  ;  If  Josiah  Galbreath  never  had  any  interest  in,  or  concern 
with  the  warrant,  can  this  action  be  supported  in  his  name  *? 

Third  ;  If  Josiah  Galbreath  be  a  mere  fictitious  person,  can  this 
ejectment  be  supported  in  his  name  1 

Fourth  ;  Could  the  state  have  granted  a  vacating  warrant  for  the 
land  in  dispute,  after  George  W.  Fell  commenced  his  settlement  and 
improvement,  if  he  was  the  first  settler  on  the  land,  as  long  as  he 
continued,  and  persisted  in  completing  the  same,  according  to  law ; 
although  he  did  not  commence  them  until  more  than  two  years  after 
the  22d  of  December  1795,  the  time  when  all  prevention  to  making 
settlement  on  account  of  the  hostility  of  the  Indians,  ceased  to  exist  1 

Fifth ;  And  if  the  state  could  not,  could  it  grant  one  to  Thomas 
Campbell,  the  assignee  of  Alexander  Hamilton,  after  Hamilton  had 
prevented  George  W.  Fell  from  continuing  his  settlement  and  im- 
provement on  the  land,  by  taking  possession,  and  holding  it,  while 
George  W.  Fell  was  in  possession  of  it,  and  after  he  had  manifested 
his  intention  to  settle  and  improve  the  land,  under  the  warrant 


78  SUPREME  COURT  [Pittsburgh, 

[Campbell  v.  Galbreath.] 

granted  in  the  name  of  Josiah  Galbreath,  by  building  a  cabin,  and 
going  into  it  with  his  bed  and  bedding,  cooking  utensils,  and  tools 
for  working  upon  the  land,  &c.  which  appears,  he  being  a  young, 
single  man,  t.o  have  been  all  the  property  he  had  1 

In  answer  to  the  first  question,  1  think,  from  the  acts  of  Benjamin 
Lodge,  in  getting  a  survey  made  under  the  warrant,  and  paying  for 
the  same  ;  from  his  claiming  the  warrant  as  his  property,  in  company 
with  Walker  and  Probst,  afterwards  in  1797,  before  the  time  had  ex- 
pired within  which  a  settlement  was  to  be  made  on  the  land,  accord- 
ing to  the  act  of  1792,  and  the  judicial  construction  put  upon  it,  and 
causing  a  contract  foi  the  making  of  such  settlement  to  be  entered 
into  with  William  Fell,  of  all  which  evidence  was  given  to  the  jury,  to- 
gether with  the  lapse  of  twenty-six  years,  without  any  claim  to  the 
warrant,  save  that  of  Lodge,  Walker  and  Probst,  having  ever  been 
heard  of — that  the  jury  might  well, and  very  rationally  infer  that  they 
were  the  owners  of  it. 

As  to  the  second  question,  I  consider  that  this  action  may  be 
maintained  in  the  name  of  Josiah  Galbreath  as  a  trustee,  although 
he  may  have  known  nothing  about  it.  I  do  not  consider  his  assent 
to  the  trust  necessary,  in  order  to  enable  the  cestui  que  trust  to  main- 
tain the  action  in  his  name.  To  decide  that  it  could  not  be  sup- 
ported without  the  consent  of  the  trustee,  in  such  a  case,  would  be 
contrary,  as  I  conceive,  to  what  has  been  the  universal  usage  and 
understanding  throughout  the  state  on  this  subject,  since  the  prac- 
tice first  obtained  in  the  land  office,  which  is  certainly  of  old  standing, 
of  taking  out  warrants  and  locations  in  the  name  of  other  persons, 
and  using  their  names  as  trustees  without  cmisulting  them,  and 
without  their  consent  at  any  time,  either  before  or  afterwards,  being 
given.  In  England,  and  in  those  states  where  they  have  courts  of 
equity,  it  is  in  the  name  of  the  trustee  only  that  the  action  of  eject- 
ment can  be  maintained.  But  in  this  state,  for  want  of  a  court  of 
equity,  it  is  different.  Ex  necessitate  rei,  the  cestui  que  trust  may 
maintain  the  action  of  ejectment  in  his  own  name;  otherwise  he 
would  be  without  a  remedy,  at  least  as  against  his  trustee,  where  he 
is  in  possession  of  the  land,  and  that  possession  is  in  no  way  neces- 
sary for  the  purpose  of  executing  the  trust.  In  Pennsylvania,  the 
action  of  ejectment,  where  it  is  commenced  against  any  other  than 
the  trustee,  may  be  supported  either  in  the  name  of  the  trustee,  or 
the  cestui  que -trust. 

The  proposition  involved  in  the  third  question,  does  not  arise  in 
this  case.  There  was  no  ground  for  the  jury  to  presume,  that  Jo- 
siah Galbreath  was  a  mere  fictitious  person.  Every  warrant  granted 
for  land  by  the  commonwealth,  is  presumed  to  be  granted  to  and  for 
the  use  of  the  warrantee  therein  named  (Cluggage  v.  Duncan,  I 
Serg.  4"  Rawle  117) ;  and  of  course  he  must  be  presumed  to  be  in 
existence,  until  the  contrary  be  proved.  But  proof,  that  the  warrant 
was  granted  for  the  use  of  one  or  more,  not  named  in  it,  does  not 
rebut  the  presumption,  that  the  warrantee  is  a  real  person,  and  still 


Sept.  1832.]  OF  PENNSYLVANIA.  79 

[Campbell  v.  Galbreath.] 

in  full  life ;  and  it  does  not  appear  that  any  other  testimony  was 
offered  or  given,  from  which  the  non-existence  of  Josiah  Galbreath 
could  reasonably  be  inferred. 

In  regard  to  the  fourth  question,  it  may  conduce  something  to  a 
correct  solution  of  it,  to  examine,  first,  into  the  nature  of  the  estate 
granted  by  a  warrant  issued,  according  to  the  provisions  of  the  act  of 
the  3d  of  April  1792,  and  then  refer  to  the  decisions  of  our  courts, 
which  have  been  heretofore  made,  together  with  some  acts  of  the 
legislature  passed  subsequently  to  the  act  of  1792,  on  the  subject. 

The  ninth  section  of  the  act  of  the  3d  of  April  1792,  is  in  the  follow- 
ing words  :  "  no  warrant  or  survey  to  be  issued  or  made  in  pursuance 
of  this  act,  for  lands  lying  north  and  west  of  the  rivers  .Ohio  and  Al- 
leghany  and  Conewango  creek,  shall  vest  any  title  in  or  to  the  lands 
therein  mentioned,  unless  the  grantee  has,  prior  to  the  date  of  such 
warrant,  made  or  caused  to  be  made,  or  shall,  within  the  space  of 
two  years  next  after  the  date  of  the  same,  make  or  cause  to  be  made, 
an  actual  settlement  thereon,  by  clearing,  fencing  and  cultivating 
at  least  two  acres  for  every  hundred  acres  contained  in  one  survey, 
erecting  thereon  a  messuage  for  the  habitation  of  man,  and  residing 
or  causing  a  family  to  reside  thereon  for  the  space  of  five  years  next 
following  his  first  settling  of  the  same,  if  he  or  she  shall  so  long  live; 
and  in  default  of  such  actual  settlement  and  residence,  it  shall  and 
may  be  lawful  to  and  for  this  commonwealth  to  issue  new  warrants 
to  other  actual  settlers  for  the  said  lands,  or  any  part  thereof,  reciting 
the  original  warrants,  and  that  actual  settlements  and  residence  have  not 
been  made  in  pursuance  thereof;  and  so  often  as  defaults  shall  be  made 
for  the  time,  and  in  the  manner  aforesaid  ;  which  new  grant  shall 
be  under,  and  subject  to  all  and  every  the  regulations  contained  in 
this  act :  provided  always,  that  if  any  such  actual  settler  or  grantee, 
in  any  such  original  or  succeeding  warrant,  shall,  by  force  of  arms  of 
the  enemies  of  the  United  States,  be  prevented  from  making  such 
actual  settlement,  or  be  driven  therefrom,  and  shall  persist  in  his 
endeavours  to  make  such  actual  settlement  as  aforesaid,  then,  in 
either  case,  he  and  his  heirs  shall  be  entitled  to  have  and  to  hold  the 
said  lands  in  the  same  manner  as  if  the  actual  settlement  had  been 
made  and  continued." 

Now,  although  the  language  here  employed  by  the  legislature, 
would  seem  to  make  the  settlement  and  residence  required  to  be 
made  upon  the  land,  a  condition  precedent,  by  declaring  no  warrant 
shall  vest  any  title  unless  the  condition  shall  have  been  performed,  if 
the  party  should  so  long  live,  as  the  term  allowed  by  the  act  for  the 
performance  of  it,  and  not  be  prevented  from  doing  so,  by  force  of 
arms  of  the  enemies  of  the  United  States,  yet  it  appears  to  me  that 
it  cannot  be  considered  altogether  strictly  such.  There  are  no 
technical  words  necessary  to  distinguish  conditions  precedent  from 
conditions  subsequent  in  their  creation  :  the  same  expression  may 
indifferently  make  either,  being  governable  by  the  intention  of  (he 
party  who  frames  and  effectuates  the  instrument.  2  Woodeson  140  ; 


80  SUPREME  COURT  [Pittsburgh, 

[Campbell  v.  Galbreath.] 

Ca.  temp.  Talb.  166.  And  wherever  it  appears  to  be  the  intent,  that 
the  estate  shall  vest  previous  to,  and  until  the  event  which  is  to  de- 
feat it,  this  is  construed  to  be  a  condition  subsequent.  Ibid.  See 
also,  Spring  v.  Casar,  1  Roll.  Mr.  415 ;  W.  Jones  389.  The  nature 
also  of  the  condition  which  is  to  be  performed  may  in  some  degree 
determine  the  character  of  it :  as  if  an  estate  be  granted  to  a  man, 
si  ipse  velit  inhabitare,  Sic.  ;  it  is  said  that  these  words  are  a  subse- 
quent condition,  because  it  is  a  thing  of  continuance,  which  may  be 
infringed  and  broken  every  year.  See  Plowden  32,  note  ;  Winch 
116 ;  Vin.  Mr.  tit.  Cond.  T.pl.  33  ;  Lit.  Rep.  258;  Cro.  Eliz.  360. 

Now,  the  nature  of  the  condition  which  is  to  be  performed  under  the 
act  of  1792,  makes  it  indispensably  necessary,  that  the  party  should 
have  a  right  to  enter  upon  and  possess  the  land;  and  this  right 
must  be  considered  as  granted  to  him  by  the  warrant  at  least.  If  it 
be  not  title,  it  is  a  considerable  advancement  towards  what  Sir  Wil- 
liam Blackstone  defines  to  be  a  perfect  one  (2  Bl.  Com.  195,  6), 
and  must  be  considered  more  than  a  bare  right  to  the  possession  of 
the  land  ;  it  is  nothing  short  of  an  incipient  and  qualified  right  to  it 
in  fee,  which  is  to  become  absolute  and  perfect  upon  the  fulfilment 
of  the  condition,  or  happening  of  those  events  which  dispensed 
with  the  performance  of  it.  I  think,  then,  it  must  be  admitted,  that, 
under  the  warrant,  the  party  has  not  only  a  right  to  enter  upon  the 
land  for  the  purpose  of  performing  the  condition,  but  for  doing  and 
performing  any  act  of  ownership  whatever,  without  being  responsible 
for  waste,  or  liable  to  be  controlled  by  the  state  in  any  thing  that 
he  may  think  proper  to  do  upon  it,  until  after  a  failure  upon  his  part 
to  perform  the  condition  within  the  time  allowed  by  the  act.  So  if 
he  be  expelled  forcibly  from  his  possession,  or  invaded  in  it  by 
another  person,  he  has  a  right  to  maintain  his  action  of  ejectment  or 
trespass  against  the  intruder.  Beside,  if  the  warrantee  die  within 
the  time  that  is  allowed  by  the  act  for  making  the  settlement,  with- 
out having  made  it, it  is  clear  to  me,  that,  by  the  terms  of  the  act  of 
1792,  an  absolute  estate  in  fee,  is  thereupon  transmitted  to  his  heirs 
by  descent,  which  could  not  well  be  unless  he  died  seised  of  such. 

From  these  considerations,  I  am  inclined  to  think  that  the  condi- 
tion of  settlement  and  residence  cannot  be  considered  purely  of  a 
precedent  character,  but  that  an  incipient  and  qualified  right  in  fee 
to  the  land  vests  immediately  in  the  grantee,  upon  his  obtaining  the 
warrant,  liable  to  be  defeated  by  a  non  performance  of  the  condition, 
or  to  become  absolute  and  unconditional  upon  the  fulfilment  of  it,  or 
upon  the  happening  of  those  events  which,  by  the  provisions  of  the 
act,  dispense  with  the  performance  of  it  altogether  ;  and  that  such 
an  interest  being  vested  in  the  grantee,  he  cannot  be  divested  of  it, 
even  if  he  fail  to  perform  the  condition,  but  in  the  manner  prescribed 
by  the  act  of  the  3d  of  April  1792,  or  some  of  the  other  acts  passed 
in  relation  to  the  granting  of  lands  north  and  west  of  the  rivers  Ohio 
and  Alleghany  and  Conewango  creek ;  and  that  none  other  than 


Sept.  1832.]  OF  PENNSYLVANIA.  81 

[Campbell  v.  Galbreatb.] 

the  commonwealth  can  take  advantage  of  the  condition  broken,  un- 
less authorised  by  some  one  or  more  of  the  acts  last  alluded  to. 

It  may  be  proper  also  to  observe  and  bear  in  mind,  that  although 
the  condition  of  settlement  may  be  considered  as  forming  a  part  of 
the  consideration  for  which  the  land  is  to  be  granted,  yet  the  pay- 
ment of  the  purchase  money  would  seem  to  have  been  the  primary 
and  great  consideration  with  the  legislature  at  the  time  of  passing 
the  act  of  1792  ;  for  in  no  case  is  the  payment  of  it  to  be  dispensed 
with,  nor  a  warrant  to  be  granted  until  it  has  been  paid.  See  the 
last  clause  of  the  tenth  section.  But  the  death  of  the  warrantee  is, 
by  the  express  provision  of  the  ninth  section,  sufficient  under  certain 
circumstances  to  dispense  with  the  settlement  and  residence  upon 
the  land.  I  am  aware  that  a  different  sentiment  was  entertained  by 
the  late  Mr  Justice  Yeates,  4  Doll.  204,  and  therefore  have  expressed 
mine  with  the  highest  degree  of  diffidence. 

With  respect  to  these  lands  lying  north  and  west  of  the  rivers 
Ohio  and  Alleghany  and  Conewango  creek,  it  was  said,  and  decided 
by  our  courts  in  Morris  v.  Neighman,  2  Yeates  450 ;  Commonwealth 
v.  Cox,  4  Doll  204,  205  ;  WiLkins  v.  Allenton,  3  Yeates  278 ;  Jones  v. 
•Anderson,  4  Yeates  576,  and  Skeen  v.  Pearce,  7  Serg.  fy  Rawle  304, 
that  the  commonwealth  alone  could  take  advantage  of  the  condition 
broken  by  the  warrantee ;  and  that  this  was  to  be  done  by  granting 
a  new  warrant,  or  what  has  been  very  commonly  called  a  vacating 
warrant.  But  the  question  did  not  fairly  arise  in  any  of  these  cases, 
excepting  the  last ;  for  the  settler  had  entered  upon  the  land  within 
the  two  years  allowed  by  the  act  to  the  warrantee  to  commence  his 
settlement ;  and  in  Skeen  v.  Pearce  it  does  not  appear  whether  he 
took  possession  of  the  land  within  that  time  or  not.  It  however  has 
been  said,  and  most  likely  it  was  so,  that  it  was  after  the  two  years 
had  fully  expired,  and  the  warrantee  had  neglected  to  commence  or 
make  a  settlement ;  for  the  court  seems  to  have  decided  the  abstract 
question,  without  regard  to  the  time  when  the  settler  obtained  pos- 
session and  commenced  his  settlement.  So  far  as  it  has  been  decid- 
ed or  said  by  our  courts  and  judges,  that  no  one  who  enters  upon 
warranted  land  before  the  expiration  of  the  time  allowed  for  making 
the  settlement  shall  acquire  any  right  thereby,  or  gain  any  advan- 
tage over  the  warrantee,  is  no  doubt  correct :  or  if  the  warrantee  be 
the  first  to  enter  upon  the  land,  and  to  make  or  cause  to  be  made  a 
settlement  after  the  two  years  or  more  that  have  expired,  I  think 
that  he  must  be  preferred;  and  that  neither  the  commonwealth  nor 
any  individual  can  take  advantage  afterwards  of  the  condition 
broken,  as  long  as  he  continues  and  keeps  up  the  settlement  and 
residence  in  the  manner  required  by  the  act. 

The  courts  of  this  state  seem  hitherto  to  have  entertained  the 
opinion,  and  to  have  laid  it  down  as  the  law,  that  the  land  lying 
north  and  west  of  the  Ohio  and  Alleghany,  and  Conewango  creek, 
after  being  surveyed  under  warrants  granted  by  the  commonwealth, 
could  not,  where  the  warrantees  had  failed  to  commence  settlements 
L 


82  SUPREME  COURT  [Pittsburgh, 

[Campbell  v.  Galbreath.] 

within  the  term  prescribed  by  the  act  of  the  3d  of  April  1792,  be  en- 
tered upon  by  any  other  persons,  nor  be  settled  and  improved  by  them, 
without  their  becoming  trespassers,  unless  they  had  first  obtained 
from  the  commonwealth  "  new  warrants,  reciting  the  original  war- 
rants, and  that  actual  settlement  and  residence  had  not  been  made 
in  pusuance  thereof."  In  this  construction  of  the  act  of  1792, 1  would 
have  entirely  concurred  ;  indeed,  I  would  have  felt  myself  bound  to 
have  done  so,  from  the  decisions  of  the  circuit  and  supreme  courts  in 
the  cases  already  cited,  if  no  other  act  had  been  passed  by  the  legis- 
lature on  the  subject ;  although  I  am  inclined  to  think,  that  it  would 
very  fairly  have  borne  a  directly  opposite  construction.  For  the  ninth 
section  directs,  that  in  default  of  the  original  warrantees  to  make  set- 
tlements and  residence  upon  the  land,  that  it  shall  be  lawful  for  the 
commonwealth  to  issue  new  warrants,  that  is,  what  have  been  since 
called  vacating  warrants,  to  other  actual  settlers.  These  terms  pre- 
sented a  difficulty  in  giving  to  the  act  the  exposition  which  it  received, 
and  were  held  to  mean  other  persons,  who  were  desirous  to  settle  and 
improve.  3  Yeates  277 ;  7  Serg.  fy  Rawle  304.  To  justify  this 
change  and  substitution  of  terms,  it  has  been  said,  that  the  intention 
of  the  legislature  would  be  better  fulfilled,  and  all  the  words  of  the 
clause  receive-their  full  operation.  And  again,  that  the  term  actual 
settlers,  employed  frequently  throughout  the  act,  is  not  applied  exclu- 
sively to  him  who  has  made  and  continued  his  settlement,  but  is 
used  to  denote  one  wlio  is  desirous  to  settle.  If  this  latter  be  so,  I  have 
not  been  able  to  discover  it ;  neither  am  I  satisfied  that  the  meaning 
of  the  legislature  will  be  better  promoted  by  changing  the  phraseol- 
ogy. In  the  third  section,  those  who  have  settled,  and  those  who  are 
desirous  to  settle,  are  terms  that  cannot  be  mistaken.  In  the  fifth 
section,  the  term  "  actually  settled,"  is  used  to  designate  land  that 
has  been  settled,  and  not  land  to  be  settled.  In  the  eighth  section,  the 
deputy  surveyor  is  directed  to  make  a  survey  for  any  person,  on  his  ap- 
plication, who  has  made  an  actual  settlement,  which,  without  a  clear 
perversion  of  both  the  words  and  meaning  of  the  legislature,  cannot 
be  made  to  mean  a  person  who  is  desirous  to  settle.  In  the  ninth 
section,  the  term  "  actual  settlement"  must  be  understood  to  mean 
a  settlement  already  made,  and  not  one  intended  to  be  made  :  and 
again,  the  term  "  actual  settler,"  used  in  the  proviso  of  this  section, 
refers  to,  and  was  intended  to  designate  a  person  who  had  commenced 
a  settlement  and  was  driven  from  it.  So  in  the  tenth  section,  the 
same  distinction  and  meaning  are  manifest.  In  short,  it  appears 
to  me,  that  throughout  the  whole  of  the  act,  that  as  often  as  the 
term  "actual"  is  applied  to,  and  used  in  connection  with  the  term 
"  settlement,"  or  "  settler,"  it  was  intended  to  convey  the  idea  of  a 
settlement  which  had  been  made,  or  at  least  commenced  ;  or  a  set- 
tler who  either  had  been,  or  was  at  the  time  residing  on,  and  in  the 
actual  possession  of  the  land.  And  I  am  likewise  inclined  to  believe 
that  this  understanding  of  these  terms  throughout  the  act  is  neces- 
sary, in  order  to  carry  into  effect  the  intention  of  the  legislature  ;  be- 


Sept.  1832.]  OF  PENNSYLVANIA.  83 

[Campbell  v.  Galbreath.] 

cause  it  will  be  admitted  by  all,  that  from  the  act  it  is  manifest,  that  it 
was  not  the  design,  or  at  least  not  directly  intended,  that  the  common- 
wealth should  be  paid  for  the  land,  at  the  rate  of  more  than  twenty 
dollars  per  hundred  acres,  besides  making  a  settlement  and  residence, 
such  as  is  mentioned  in  the  act.  As  no  warrant  could  be  obtained 
without  the  purchase  money  being  first  paid,  the  only  thing  that 
remained  after  that  to  be  done,  to  satisfy  the  utmost  wishes  of  the 
commonwealth,  was  to  make  the  settlement  and  residence  as  speci- 
fied in  the  act.  If,  however,  the  warrantee  neglected  to  do  this 
within  the  time  prescribed,  is  it  not  most  reasonable  to  suppose,  that 
the  legislature  intended  that  no  other  than  an  actual  settler,  or  one 
who  had  previously  commenced  his  settlement  and  residence  upon 
the  land,  should  have  a  new  or  vacating  warrant  for  it  1  The  com- 
monwealth having  received  the  purchase  money  for  it  from  the  origi- 
nal warrantee,  the  next  great  object  was  to  have  the  land  settled 
and  improved  ;  and  by  whom  was  this  so  likely  to  be  done,  as  the 
man  who  had  already  given  earnest  of  what  he  would  do  in  this 
respect,  by  his  having  entered  upon  the  land  with  his  family,  mani- 
festing by  his  acts,  to  the  world,  his  intention  and  determination  to 
complete  the  settlement  and  residence  required  ?  But,  according  to 
the  construction  which  has  heretofore  been  put  upon  this  act  by  the 
judiciary  of  this  state,  all  that  class  of  citizens  who  are  without 
much  money,  but  far  the  most  likely  to  be  willing  to  undertake  and 
to  perform  this  latter  condition  of  settlement  and  residence,  are  en- 
tirely excluded  ;  and  hence  the  settlement  and  improvement  of  the 
land  are  necessarily  postponed,  until  the  moneyed  class  shall  find  it 
convenient,  and  their  interest  to  do  it.  It  cannot  be  denied,  that 
it  was  the  intention  of  the  legislature  in  passing  this  act,  to  accom- 
modate both  these  classes  of  citizens  ;  and  as  my  construction  does 
not  necessarily  exclude  either,  it  must  therefore  be  more  in  accord- 
ance with  their  design  and  intention,  and  ought  also  for  that  reason 
to  have  been  preferred.  The  construction  as  it  appears  to  me,  is 
fortified  and  strengthened  by  a  provision  contained  in  the  tenth  sec- 
tion ;  which  directs,  that  in  case  of  actual  settlers,  unless  hindered  by 
death,  or  the  enemies  of  the  United  States,  neglecting  to  apply  for 
warrants  for  the  space  of  ten  years  after  the  passing  of  the  act,  that 
the  land  shall  be  granted  to  " others"  without  the  addition  of  "  set- 
tlers :"  showing  pretty  clearly,  that  where  the  settlements  and  resi- 
dence required  by  the  act  had  been  made,  but  the  purchase  money 
not  paid,  that  the  lands  might  be  granted  to  any  other  persons 
who  would  pay  the  purchase  money  to  the  commonwealth,  without 
their  being  actual  settlers.  Indeed,  that  could  not  be,  as  long  as  the 
original  settlers  or  those  claiming  under  them,  continued  in  the 
actual  possession.  It  is  clear,  that  this  provision  was  introduced  into 
this  latter  section,  and  the  phraseology  changed,  with  a  view  to  have 
the  purchase  money,  where  none  had  ever  been  paid  for  the  land, 
paid  as  early  as  it.  was  thought  would  comport  with  the  ability  of 
actual  settlers  ;  and  if  they  should  neglect  to  pay  after  that  period, 


84  SUPREME  COURT  [Pittsburgh, 

[Campbell  v.  Galbroath.] 

then  to  obtain  it,  and  grant  the  land  to  the  first  settler  or  no  settler, 
that  should  offer  it. 

Were  it  not  however  for  other  acts  of  the  legislature,  which  have 
been  since  passed,  on  the  subject  of  granting  these  lands,  lying 
north  and  west  of  the  rivers  Ohio  and  Alleghany  and  Conewango 
creek,  I  should  feel  myself  bound,  as  I  have  said,  to  adhere  to  what 
seems  to  have  been  the  judicial  construction  of  this  act  of  1792. 
But  when  I  come  to  look  at  the  acts  of  the  22d  of  April  1794,  of  the 
22d  of  September  1794,  of  the  2d  of  April  1802,  and  of  the  3d  of 
April  1804,  it  is  impossible  for  me  to  doubt  for  a  single  moment  of 
the  intention  of  the  legislature  to  give  the  authority  and  the  right 
to  persons  who  were  desirous  of  securing  lands  first  by  a  settlement, 
to  enter  without  a  new  or  vacating  warrant  or  filing  an  application 
for  the  same,  upon  lands  which  had  been  surveyed  under  original 
warrants,  but  not  settled  by  the  warrantees  within  the  two  years  or 
any  subsequent  period. 

The  act  of  the  22d  of  April  1794,  Purdon's  Dig.  532,  sec.  1,  de- 
clares, that  "  from  and  after  the  passing  of  this  act,  no  application 
shall  be  received  in  the  land  office  for  any  unimproved  land  within 
that  part  of  this  commonwealth,  commonly  called  the  New  Purchase, 
and  the  triangular  tract  upon  Lake  Erie."  The  second  section 
further  declares  that  "  no  warrant  shall  issue  after  the  1 5th  day  of 
June  next,  for  any  land  within  that  part  of  the  commonwealth, 
commonly  called  the  New  Purchase,  and  the  tiiangular  tract,  upon 
Lake  Erie,  except  in  favour  of  persons  claiming  the  same  by  virtue  of 
some  settlement  and  improvement  being  made  thereon." 

The  tract  of  land  commonly  called  the  New  Purchase,  and  the 
triangular  tract  upon  lake  Erie,  are  the  same  which  were  purchased 
of  the  Indians,  at  fort  M'lntosh,  in  1784,  and  of  the  United  States : 
the  first,  of  the  Indians,  and  the  second,  of  the  United  States ;  and 
every  one  knows,  that  these  two  tracts  of  land  embrace  all  the  land 
lying  north  and  west  of  the  rivers  Ohio  and  Alleghany,  and  Cone- 
wango creek.  This  act,  then,  prohibits,  in  express  terms,  the  re- 
ceiving at  the  land  office  any  application  for  unimproved  land,  or  the 
issuing  of  any  warrant,  except  in  favour  of  persons  for  lands  which 
they  claim  by  virtue  of  some  settlement  and  improvement  made 
thereon,  which  lie  within  these  two  tracts.  The  direction  and  com- 
mand are,  that  "no  warrant  shall  issue,"  which  is  positive  and 
peremptory.  It  will  not  satisfy  the  terms  of  this  act  to  say,  that  new, 
or  vacating  warrants  are  not  intended  to  be  embraced,  because  the 
term  "  warrant,"  is  general,  and  includes  both  original,  and  new  or 
vacating  warrants  ;  and  every  land  warrant  that  can  be  issued,  must 
fall  within  one  or  other  of  these  two  classes ;  unless  a  warrant  of 
acceptance,  which  is  not  applicable  to  the  present  case.  Beside,  I 
can  perceive  no  clause  or  expression  in  this  act,  showing  that  any 
such  distinction  was  designed.  The  next  act,  in  order  of  time,  was 
passed  the  22d  of  September  of  the  same  year  ;  by  the  first  section 
of  which  it  is  enacted,  that  "  from  and  after  the  passing  of  this  act, 


Sept.  1832.]  OF  PENNSYLVANIA.  85 

[Campbell  v.  Galbreath.] 

no  application  shall  be  received  at  the  land  office,  for  any  lands  within 
this  commonwealth,  except  for  such  lands  whereon  a  settlement  has  been, 
or  hereafter  shall  be  made,  grain  raised,  and  a  person  or  persons  residing 
thereon.  The  restriction  contained  in  this  act  is  equally  positive  and 
mandatory  with  the  last.  It  extends  to  all  the  lands  within  the 
commonwealth,  without  exception ;  and  it  is  difficult  to  conceive 
how  any  exception,  in  this  respect,  could  be  raised  by  construction. 
The  terms  of  the  act  are  express  and  unqualified.  There  is  not  even 
any  thing  contained  in  the  title  of  this  act,  that  would  seem  to  indi- 
cate that  the  legislature  intended  to  provide  for  the  disposition  of 
lands  in  one  district  or  section  of  the  state  more  than  another.  If 
so,  it  is  clear,  that  after  the  passing  of  this  act,  no  original,  or  vacat- 
ing warrant  could  be  issued ;  for  no  application  could  even  be  re- 
ceived for  that  purpose,  unless  the  lands  were  previously  or  thereafter 
settled,  grain  raised,  and  a  person  or  persons  residing  thereon.  This 
act  has  not  only  prohibited  the  issuing  of  warrants  for  lands  unset- 
tled and  unimproved,  but  has  defined  and  set  forth  the  nature  and 
extent  of  the  settlement  and  improvement  that  must  be  made  upon 
the  land,  before  a  warrant  of  any  kind  shall  be  issued  for  it ;  so  that, 
if  the  land  forfeited  by  a  warrantee,  for  not  having  made  the  settle- 
ment and  improvement  within  the  time  prescribed  by  law,  be  not 
open  to  appropriation  by  settlement  for  any  person  who  may  please 
to  enter  upon  it,  after  the  forfeiture,  without  first  having  obtained  a 
vacating  warrant,  it  would  appear,  then,  that  after  the  passage  of 
this  act,  these  lands  could  not  be  disposed  of  in  any  manner  or  form 
known  to  the  law,  and  that  the  warrantees  might  continue  still  to 
be  the  owners  and  holders  of  them,  without  ever  making  a  settle- 
ment. Now,  surely,  such  a  thing  has  never  even  been  dreamed  of. 
Nobody  ever  supposed  that  the  warrantees  were  discharged  from  the 
condition  of  settlement  and  residence  ;  nor  that  the  legislature  had 
deprived  the  commonwealth  of  all  remedy  to  take  advantage  of  the 
forfeitures  in  such  cases. 

The  next  act  was  passed  on  the  3d  of  April  1802,  and  has  a  spe- 
cific  reference  to  the  lands  lying  north  and  west  of  the  rivers  Ohio 
and  Alleghany  and  Conewango  creek  ;  for  it  declares  in  the  follow- 
ing words  :  "  in  order  to  prevent  the  confusion  that  would  arise  from 
issuing  different  warrants  for  the  same  land  ;  and  to  prevent  law- 
suits, in  future,  respecting  grants  from  the  land  office  ;  under  the  act 
of  April  3d,  1792,"  it  is  enacted,  "  that  from  and  after  the  passing  of 
this  act,  the  secretary  of  the  land  office  shall  not  grant  any  new  war- 
rant, for  land  which  he  has  reason  to  believe  hath  been  already  taken 
up  under  a  former  warrant;  but  in  all  such  cases,  he  shall  cause  a  du- 
plicate copy  of  the  application  to  be  mader,  on  which  duplicate  copy 
he  shall  write  his  name,  with  the  day  and  year  in  which  it  was  pre- 
sented, and  he  shall  file  the  original  in  his  office,  and  deliver  the 
copy  to  the  party  applying  :  provided  always,  that  on  every  applica- 
tion so  to  be  made  and  filed,  shall  be  certified  on  the  oath  or  affirma- 
tion of  one  disinterested  witness,  that  the  person  making  such  application, 


86  SUPREME  COURT  [Pittsburgh, 

[Campbell  v.  Galbreath.] 

or  in  wfiose  behalf  such  application  is  made,  is  in  actual  possession  of 
the  land  applied  for ;  and  such  certificate  shall  mention  also  the  time 
when  such  possession  was  taken :  and  the  application  so  filed  in  the 
secretary's  office  shall  be  entitled  to  the  same  force  and  effect,  and 
the  same  priority  in  granting  warrants  to  actual  settlers,  as  though 
the  warrants  had  been  granted  at  the  time  when  applications  were 
filed."     This  act  is  confirmatory  of  the  construction  and  application 
which  I  have  put  on  and  made  of  the  other  acts  ;  for  it  is  predicated 
upon  the  principle  of  law,  that  no  other  than  an  actual  settler,  or 
some  one  on  his  behalf,  was  entitled  to  apply  for  a  new,  or  vacating 
warrant ;  and  directs  what  proof  shall  be  adduced,  not  only  of  being 
in  the  actual  possession  of  the  land  applied  for,  but  of  the  time  when 
he  took  that  possession.     From  the  express  provision  of  this  act,  no 
application  for  a  new  warrant  can  be  received,  unless  proof  be  made 
that  the  applicant  is  in  the  actual  possession  of  the  land.     The  war- 
rant spoken  of  in  this  act,  is  described  in  the  same  terms  of  the 
vacating  warrant,  which  is  directed  to  be  issued  by  the  act  of  the 
3d  of  April  1792,  and  substitutes  the  filing  of  the  application  and 
giving  a  duplicate  of  it  to  the  applicant,  for  a  new,  or  vacating  war- 
rant.    This  act  appears  to  me  to  be  so  plain  and  positive  in  its  terms, 
that  it  is  susceptible  of  but  one  construction,  which  is,  that  an  ap- 
plication is  substituted  by  it,  in  place  of  a  vacating  warrant ;  and  that 
no  application  can  be  received,  except  in  favour  of  the  man  who  has 
previously  become  an  actual  settler,  in  the  possession  of  the  land,  and 
still  continuing  in  the  possession  of  it. 

The  act  of  the  3d  of  April  1804,  followed  the  one  which  I  have 
last  noticed,  and  shows  in  the  first  place,  that  the  legislature  con- 
sidered the  act  of  the  22d  of  September  1794,  as  applying  to  and 
embracing  the  lands  lying  north  and  west  of  the  rivers  Ohio  and 
Alleghany  and  Conewango  creek,  and  that  applications  for  these 
lands,  more  than  other  lands  within  the  state,  could  not  be  received 
at  the  land  office,  unless  a  settlement  had  been  or  thereafter  should 
be  made  upon  them,  as 'also  grain  raised  and  a  person  or  persons 
residing  thereon.  It  in  the  next  place  demonstrates  that  applications 
filed  in  the  land  office,  by  actual  settlers,  where  the  party  was  entitled, 
under  the  act  of  1792,  to  a  vacating  warrant,  are  to  be  considered 
as  substituted  for  vacating  warrants,  and  to  have  the  same  force  and 
effect,  and  that  the  party  shall  be  permitted  to  make  proof  of  his  im- 
provement and  residence,  as  fully,  and  with  equal  force  and  effect,  as  if 
he  had  obtained  a  vacating  warrant. 

It  has  been  said  that  this  act  furnishes  evidence  of  the  legislature 
having  approved  and  acted  upon  the  judicial  construction  of  the  act 
of  the  3d  of  April  1792.  7  Serg.  fy  Rawle  305,  306.  It  however 
does  not  present  itself  to  my  mind  in  this  point  of  view  ;  but  rather 
evidences  the  contrary.  It  must  be  observed,  that  the  terms  of  this 
act  are  such,  as  to  embrace  applications  then  filed,  or  those  which 
might  be  thereafter  filed  with  the  secretary  of  the  land  office ;  and 
as  it  is  only  such  applications  as  were  made  out  in  conformity  to  the 


Sept.  1832.]  OF  PENNSYLVANIA.  87 

[Campbell  v.  Galbreath.] 

requisites  of  the  act  of  the  22d  of  September  1794,  showing  that  a 
settlement  had  been  made,  and  grain  raised  on  the  land,  and  that  a 
person  was  residing  thereon,  that  are  provided  for  by  this  act  of 
1804,  it  proves,  that  the  legislature  considered  the  act  of  the  22d  of 
September  1794,  as  directly  applicable  to  the  lands  lying  north  and 
west  of  the  rivers  Ohio  and  Alleghany  and  Conewango  creek  ;  and 
that  any  person  was  thereby  authorised  to  enter  upon  them,  for  the 
condition  broken,  and  to  settle  and  improve  them,  that  he  might  en- 
title himself  to  a  warrant-  for  them.  Beside,  I  have  already  shown, 
that  by  the  express  terms  of  the  act  of  the  22d  of  September  1794, 
no  application  for  a  warrant  for  land  could  be  received  at  the  land 
office  for  unsettled,  unimproved  and  uncultivated  land.  Yet  from 
the  act  of  the  3d  of  April  1804,  applications  for  lands,  for  which 
vacating  warrants  might  have  been  issued  under  the  act  of  the  3d 
of  April  1792,  might  have  been  received  and  filed  in  the  land  office; 
but  not  without  having  been  previously  settled,  improved  and  culti- 
vated as  directed  and  required  by  the  act  of  the  22d  of  September 
1794.  In  addition  to  this,  it  must  also  be  recollected  here,  that  the 
act  of  the  2d  of  April  1802,  which  has  been  recited  and  explained, 
prohibited  the  issuing  of  vacating  warrants,  and  substituted  the 
filing  of  applications  in  the  land  office,  and  the  giving  of  copies  of 
the  applications  instead  of  the  warrants,  and  that  in  doing  so,  no  ap- 
plications were  to  be  received  for  unsettled  lands,  but  for  such  only 
as  were  settled  and  improved,  and  from  those  only,  by  or  on  behalf 
of  whom,  they  had  been  settled.  All  which,  as  it  appears  to  me, 
tends  to  repel  the  idea  of  the  legislature  having  ever  recognized  or 
sanctioned  the  judicial  construction  of  the  act  of  the  3d  of  April 
1792.  These  acts  being  all  enacted  in  part  materia,  must  be  construed 
as  parts  of  the  same  act,  and  so  as  to  give  consistency  to  the  whole 
if  practicable.  Now,  by  observing  this  rule,  I  cannot  entertain  a 
moment's  doubt,  but  that  the  legislature  have  thereby  authorised 
any  person  who  may  have  thought  proper  to  do  so,  to  enter  upon 
and  settle  lands  lying  north  and  west  of  the  rivers  Ohio  and  Alleg- 
hany and  Conewango  creek,  which  had  been  granted  by  original 
warrants  to  persons  who  had  failed  to  perform  the  condition  of  settle- 
ment and  residence  ;  and  thus  to  take  advantage  of  the  condition 
broken,  without  either  obtaining  a  vacating  warrant  or  filing  an  ap- 
plication therefor.  Otherwise,  the  absurdity  as  well  as  contradiction 
will  be  imputed  to  the  legislature,  of  having  declared,  that  in  no 
case  shall  an  application  for  a  vacating  warrant  be  received  at  the 
land  office,  unless  the  land  has  been  previously  settled  and  improved 
by  the  applicant,  or  one  from  whom  he  derives  his  claim,  and  the 
applicant  be  in  possession  thereof;  and  that  notwithstanding  this, 
they  have  denounced  such  applicant  a  trespasser  and  intruder.  If 
the  legislature  had  even  said,  that  applications  for  vacating  warrants 
might  be  received  from  such  persons  as  had  settled  upon  these  lands 
previously  granted  by  original  warrants,  where  the  warrantees  had 
failed  to  make  settlements  within  the  time  prescribed,  it  would  have 


88  SUPREME  COURT  [Pittsburgh, 

[Campbell  v.  Galbreath.] 

been  sufficient  to  have  authorised  an  entry  upon  the  lands  by  such 
settlers  for  the  condition  broken,  and  to  have  taken  advantage  of  it ; 
but  they  have  gone  further,  as  I  conceive,  and  have  declared  ex- 
pressly, that  applications  for  vacating  warrants  shall  be  received 
from  no  others  than  those  who  shall  have  settled,  cultivated  and 
improved  the  lands. 

In  the  case  of  an  estate  held  upon  condition,  I  agree  that  accord- 
ing to  the  principles  of  the  common  law,  its  determination  is  not 
effected  before  entry  of  the  grantor  or  those  claiming  under  him. 
JVoi/'s  Maxims  81;  Co.  Litt.  202  a,  240  6;  1  Skep.  Touch.  153. 
Hence  a  grant  by  the  crown,  of  an  estate  forfeited  before  an  injunc- 
tion linding  the  forfeiture,  is  illegal  and  void.  Leighton's  Case,  2 
Fern.  173;  7  Co.  36.  But  as  the  late  Mr  Justice  Duncan  observed 
in  Skeen  v.  Pearce,  7  Serg.  fy  Rawle  304,  "  where  the  law  pre- 
scribes the  mode  and  manner  in  which  rights  to  lands,  accruing  to 
the  state,  by  reason  of  any  default  in  the  grantee,  shall  issue  (or  be 
acquired),  that  mode,  and  no  other,  must  be  pursued."  Here  it  is, 
as  I  think  I  have  already  shown,  that  any  one  who  pleases  may  take 
advantage  of  it  by  entering  upon  the  land,  and  making  and  continu- 
ing a  settlement  and  residence,  after  the  forfeiture  by  the  original 
warrantee. 

Time  is  said  to  be  of  the  essence  of  the  condition ;  which  if  not  per- 
formed by  the  warrantee  within  the  time  prescribed,  he  shall  claim  no 
benefit  under  his  warrant,  from  his  subsequent  performing  or  attempt- 
ing to  perform  it.  No  doubt  time  is  of  the  essence  of  the  condition, 
so  far  as  to  determine  when  the  land  may  be  entered  on  for  the  con- 
dition broken ;  but  where  the  warrantee,  who  has  already  paid  the 
purchase  money  for  the  land  to  the  state,  and  has  been  the  first  to 
make  the  settlement,  improvement  and  residence  upon  it,  in  fulfil- 
ment of  the  terms  and  condition,  and  in  discharge  of  the  whole  con- 
sideration upon  which  it  was  granted,  is  it  not  perfectly  reasonable 
and  equitable  that  his  subsequent  settlement,  improvement  and  resi- 
dence, should  be  accepted  and  taken  by  the  state  in  satisfaction  of 
all  that  was  required  of  him  at  first  to  vest  in  him  an  absolute  estate 
in  fee-simple  in  the  land]  Seeing  the  state  has  his  money,  and  he 
has  been  the  first  to  make  the  settlement  upon  the  land,  it  seems  to 
me  that  he  ought  in  equity  and  fairness  to  be  allowed  the  full  bene- 
fit of  holding  it  under  the  original  warrant,  in  the  same  manner  as  if 
he  had  complied  with  the  condition  of  settlement,  improvement  and 
residence,  within  the  time  prescribed  by  law.  It  was  uncertain  how 
long  it  might  have  been  before  that  the  land  would  have  been  taken 
by  any  other ;  and  therefore  the  state  has  been  the  gainer  in  thus 
obtaining  all  that  was  originally  required  for  it,  more  early  than  it 
possibly  could  have  been  had  from  any  other,  the  great  object  of 
the  legislature,  as  set  forth  in  the  act  of  the  3d  of  April  1792,  being 
substantially  answered  and  satisfied.  I  am  of  opinion  that  the  war- 
rantee can  not  be  required  by  the  state  to  pay  the  purchase  money  a 
second  time,  and  to  take  out  a  new  or  vacating  warrant  for  the  land. 


Sept.  1832.]  OF  PENNSYLVANIA.  89 

[Campbell  v.  Galbreath.] 

I  also  consider  this  to  be  in  accordance  with  the  spirit  and  design  of 
the  legislature,  as  manifested  in  the  sixth  section  of  the  act  of  the 
20th  of  March  1811.  Purdorfs  Dig.  543.  The  interest,  as  well  as 
the  desire  of  the  state,  was  to  have  the  terras  and  conditions  upon 
which  the  land  was  granted  performed  as  early  as  possible ;  and  jus- 
tice would  seem  to  require  that  the  land  should  be  given  to  the  first 
who  should  comply  with  them. 

If  the  view  which  I  have  taken  of  this  subject  be  correct,  it  follows, 
that  where  the  original  warrantee  has  been  the  first  to  commence  a 
settlement  upon  the  land, .although  not  within  the  time  allowed  by 
law  for  that  purpose,  and  is  following  it  up,  but  the  land  is  entered 
upon  and  his  possession  of  it  invaded  by  another,  who  builds  a  house 
upon  the  land  and  takes  up  his  residence  there,  this  other  person 
must  be  considered  a  trespasser  and  intruder,  and  ought  not  there- 
fore to  gain  any  advantage  from  his  unlawful  intrusion ;  nor  ought 
his  violent  and  illegal  conduct  be  suffered  to  prejudice  the  warrantee 
under  such  circumstances. 

If  George  W.  Fell  entered  first  upon  the  land,  under  the  owners 
of  the  warrant  in  this  case,  and  commenced  a  settlement,  improve- 
ment and  residence,  such  as  are  required  by  the  terms  of  the  act  of 
the  3d  of  April  1792,  with  an  honest  intention  of  completing  the 
whole,  and  was  engaged  in  so  doing  when  James  Hamilton  came  first 
on  the  land  and  commenced  his  settlement,  and  afterwards  when 
Alexander  Hamilton  succeeded  James  Hamilton  in  this  possession  of 
his  settlement  and  improvement,  without  the  consent  of  Fell  and  the 
owners  of  the  warrant,  the  plaintiffs  below  ought  to  recover  the  land. 
I  do  not  think  that  the  subsequent  sale  of  the  land  by  Alexander 
Hamilton,  who  was  a  mere  trespasser,  to  Thomas  Campbell,  ought  to 
place  Campbell  in  a  different  situation  from  that  in  which  Hamilton 
stood;  for  it  appears  that  Campbell  had  full  notice  of  Fell's  improve- 
ment made  upon  the  land  before  he  bought,  which  was  sufficient  to 
have  put  him  upon  his  inquiry,  and  to  have  ascertained  from  Fell 
whether  he  had  any  claim  to  the  land,  and  under  what  right;  and 
if  he  had  then  left  the  possession,  why  he  had  done  so.  When  Fell 
commenced  his  settlement,  whether  before  or  after  Hamilton  com- 
menced his,  whether  under  the  owners  of  the  Galbreath  warrant  or 
not,  and  if  under  this  warrant,  and  before  Hamilton,  whether  he 
commenced  it  with  a  bonajide  intention  of  working,  such  as  the  act 
of  the  3d  of  April  1792  requires,  were  questions  to  be  left  to  the 
decision  of  the  jury  as  matters  of  fact;  and  if  found  in  favour  of 
the  owners  of  the  warrant,  their  case  ought  to  be  considered  as 
falling  within  the  principle  established  by  this  court  in  Jones  v. 
Anderson,  4  Yeates  569,  that  the  adverse  possession  of  an  actual  set- 
tler, within  the  time  allowed  to  the  warrantee  to  make  his  settlement, 
was  ipso  facto  a  prevention.  By  the  application  of  this  principle,  the 
Hamiltons  and  Campbells  would  be  considered  trespassers,  and  as 
having  taken  possession,  at  least  of  a  part  of  the  land  from  Fell, 
when  he  was  entitled  to  the  whole  of  it;  and  as  having  thereby  pre- 

H 


90  SUPREME  COURT  [Pittsburgh, 

[Campbell  v.  Galbreath.] 

vented  him  from  improving  the  land  in  the  manner  he  might  wish, 
and  certainly  had  a  right  to  do.  The  wrong-doer  has  no  good  reason 
to  complain  of  the  application  of  this  principle  ;  it  is  only  a  just  pun- 
ishment inflicted  upon  him  for  his  demerits,  and  at  the  same  time  a 
retribution  to  the  party  injured,  while  the  state  sustains  no  loss  by  it; 
for  whether  the  condition  of  settlement,  improvement  and  residence, 
be  completed  by  the  one  or  the  other,  the  loss  or  gain  to  her  is  the 
same.  See  Lilt.  334.  Besides,  I  think  it  right  upon  the  score  of 
sound  policy,  in  order  to  remove  all  temptation  to  commit  a  wrong 
or  trespass ;  as  in  the  case  of  an  estate  granted  upon  a  condition 
against  law,  the  estate  upon  this  principle  will  be  held  good  and 
absolute,  and  the  condition  void.  Co.  Litt.  206.  Nothing  short  of 
twenty-one  years  adverse  possession  on  the  part  of  the  disseisor  can 
give  him  a  right  to  the  land.  It  is  not  the  case  of  two  actual  set- 
tlers, as  in  Crosby  v.  Brown,  2  Binn.  124,  where  the  elder  settler, 
after  having  made  some  improvements  upon  the  land,  was  prevented 
from  continuing  them  by  the  violence  of  a  younger  settler,  and  left 
the  land  for  several  years  before  he  took  any  steps  to  recover  the 
possession  from  the  younger,  who  still  continued  to  hold  it  and  to 
improve  the  land  :  it  was  held  by  this  court  that  the  plaintiff's  claim 
or  title  to  the  land  was  not  such  as  would  enable  him  to  bring  and 
maintain  his  action  at  any  time  within  the  twenty-one  years  ;  and 
that  it  ought  to  be  left  to  the  jury  to  decide  whether  he  had  not 
relinquished  his  settlement.  It  must  be  considered  as  the  case  of  a 
warrant  holder  who  Had  paid  to  the  state  the  whole  of  the  purchase 
money,  and  had  seated  himself  upon  the  land,  performing  the  last 
act  necessary  to  invest  him  with  an  absolute  legal  title  in  fee  to  it. 
It  is  even  a  stronger  case  than  that  of  Jones  v.  Anderson,  where  the 
warrant  holder  had  never  taken  actual  possession  of  the  land,  nor 
attempted  to  make,  either  by  himself  or  any  other,  a  settlement  upon 
it;  but  had  lain  by  more  than  two  years  after  the  date  of  his  warrant, 
and  about  five  months  after  the  confirmation  of  Wayne's  treaty  with 
the  Indians,  when  the  settlement  under  which  the  defendant  claimed 
was  commenced  adversely  to  him,  and  continued  without  any  threats 
or  force  whatever  being  used  at  any  time  on  the  part  of  the  settler 
to  prevent  or  deter  the  warrant  holder  from  making  an  actual  settle- 
ment upon  the  land. 

The  necessary  conclusion  to  be  drawn  from  the  train  of  reasoning 
here  offered  is,  if  Lodge,  Walker  and  Probst  were  the  owners  of  the 
warrant,  issued  in  the  name  of  Josiah  Galbreath ;  and  George  W. 
Fell  made  under  them  the  first  actual  settlement  upon  the  land, 
with  a  bona  fide  intention  of  making  it  exclusively  the  place  of  his 
abode  and  residence,  by  building  a  house  or  messuage  thereon,  suit- 
able for  his  habitation,  clearing,  fencing,  and  cultivating  at  least 
two  acres  of  the  same  for  every  hundred  acres  contained  in  the  sur- 
vey under  the  warrant,  and  residing  thereon  with  such  family  as  he 
might  have,  for  the  space  of  five  years  then  next  following  the  first 
commencement  of  his  settlement ;  and  again,  if  the  work  of  such 


Sept.  1832.]  OF  PENNSYLVANIA.  91 

[Campbell  v.  Galbreath.] 

settlement,  improvement  and  residence  were  pursued,  kept  up  and 
persisted  in  by  Fell,  with  reasonable  diligence,  until  Hamilton  entered 
upon  and  took  possession  of  the  land ;  and  these  things  are  all  mat- 
ters of  fact  to  be  left  to  and  decided  by  the  jury,  from  the  evidence 
that  shall  be  given  in  relation  to  them  ;  the  plaintiffs  below  ought  to 
recover.  But  if  the  jury  should  be  of  opinion,  from  the  evidence, 
that  Lodge,  Walker  and  Probst  were  not  the  owners  of  the  warrant, 
or  that  Fell  did  not  settle  the  land  first  under  them  ;  or  that  he  did 
make  the  first  settlement,  but  not  for  or  under  them  ;  or  that  it  was 
not  made  with  the  intention  above  expressed  and  prosecuted,  kept 
up  and  maintained  with  reasonable  diligence,  until  the  time  that 
Hamilton  took  possession  ;  then  the  defendant  below  ought  to  hold 
the  land.  But,  inasmuch  as  these  matters  of  fact  were  not  submitted 
by  the  court  below  to  the  jury,  under  the  view  that  has  here  been 
given  of  what  the  law  is  on  this  branch  of  the  case,  the  judgment 
rendered  there  must  be  reversed,  and  a  venire  facias  de  novo  awarded. 
The  fifth  question  has,  in  effect,  been  answered,  by  what  I  have 
said  ;  for  if  the  facts  of  the  case  shall  be  found  by  the  jury,  from  the 
evidence  that  shall  be  given  upon  another  trial,  to  be  as  I  have 
stated  they  must,  in  order  to  entitle  the  plaintiffs  to  recover,  it  follows, 
that  the  warrant  and  patent  to  Campbell,  for  the  land  in  dispute,  were 
improvidently  granted,  and,  therefore,  cannot  avail  him. 

HUSTON,  J. — The  word  settlement,  as  applied  to  that  occupation 
of  vacant  land,  that  is,  of  land  not  owned  by  any  person,  under  a 
right  derived  through  the  land  office,  from  the  late  proprietors  or 
from  the  state,  is  very  old.  There  are  lands  held  by  settlement, 
without  other  title,  which  commenced  one  hundred  years  ago. 
There  are  many  hundreds  of  tracts  which  have  passed  from  father 
to  children,  and  from  grantor  to  grantee,  without  office  title,  whose 
settlement  commenced  fifty,  sixty,  and  seventy  years  ago.  At  one 
period  of  our  history,  from  1784  till  December  1786,  our  then  su- 
preme court  made  some  decisions  which  alarmed  every  body  ;  and  an 
act  of  assembly  was  passed,  declaring  all  warrants  which  should  issue 
for  lands  on  which  a  settlement  had  been  made,  except  to  the  settler, 
or  his  legal  representative,  should  be  null  and  void.  And,  soon  after, 
the  courts  decided,  that  all  such  warrants  which  had  issued  for  land 
occupied  by  a  settler  were  void.  The  same  thing  had  been  decided, 
and  was  the  settled  law,  before  the  revolution .  See  Bonne  v.  Deve- 
baugh,  3  Binn.  175. 

The  law  of  December  1786,  however,  defined  a  settlement  to  be, 
"  an  actual,  personal,  resident  settlement,  with  a  manifest  intention 
of  making  it  a  place  of  abode,  and  the  means  of  supporting  a  family, 
and  continued  from  time  to  time,  unless  interrupted  by  the  enemy, 
or  going  into  the  military  service  of  his  country."  The  above  law, 
and  the  uniform  decisions  of  our  courts,  except  the  period  above 
mentioned,  threw  out  of  protection  a  class  of  improvements  made 
and  intended  to  keep  off  other  settlers  and  warrant-holders,  until  he 


92  SUPREME  COURT  [Pittsburgh, 

[Campbell  v.  Galbreath.] 

who  made  some  trifling  improvement  could  sell  it;  and  sanctioned 
and  established  the  kind  of  settlement  described  in  the  act  of  1786  : 
and  from  the  earliest  times,  no  act  of  the  legislature,  and  no  decision 
of  court,  has  permitted  such  settler  to  be  evicted  by  any  grant  which 
could  be  acquired  from  the  land  office.  (I  except  islands,  and  some 
tracts  of  country  which,  for  a  short  period,  &c.  for  good  reasons,  were 
not  open  to  settlers.) 

The  act  of  the  3d  of  April  1792,  was  passed  by  men  who  knew 
the  history  of  our  titles  and  were  not  ignorant  that  settlements  had 
been  made,  not  for  the  purposes  mentioned  in  the  act  of  1786,  by 
men  who  never  resided  or  intended  to  reside  on  the  land  improved, 
or  to  make  it  the  means  of  supporting  a  family ;  and  to  guard 
against  such  abuse,  used  the  term  actual,  connected  with  settler, 
and  with  settlement ;  and  again  defined,  what,  under  that  act, 
should  constitute  an  actual  settlement.  After  having  provided  that 
a  survey  should  be  made  on  every  warrant,  and  for  every  actual  set- 
tler without  warrant,  the  ninth  section  says,  "  no  such  warrant 
or  survey,  to  be  issued  or  made  in  pursuance  of  this  act,  for  lands 
lying,  &c.  shall  vest  any  title  in  or  to  the  lands  therein  mentioned, 
unless  the  grantee  has,  prior  to  the  date  of  such  warrant,  made  or 
caused  to  be  made,  or  shall  within  the  space  of  two  years  next  after 
the  date  of  the  same  make  or  cause  to  be  made,  an  actual  settlement 
thereon,  by  clearing,  fencing  and  cultivating  at  least  two  acres,  for  every 
hundred  acres  contained  in  one  survey,  erecting  thereon  a  messuage  for  the 
habitation  of  man  and  residing  or  causing  a  family  to  reside  thereon  for 
the  space  of  five  years  next  following  the  first  settling  of  the  same,  if  he 
or  she  shall  so  long  live."  The  supreme  court  of  the  United  States 
have  supposed  two  conditions  were  added  to  the  grant :  first,  actual 
settlement  within  two  years,  and  secondly,  continuance  of  the  settle- 
ment five  years,  and  performing  the  acts  prescribed.  No  such  thing : 
by  clearing,  fencing,  &c.  to  the  end  of  the  sentence,  is  a  description 
of  what  kind  of  settlement  would  give  title,  and  it  was  wisely  pro- 
vided. Young  men,  in  the  face  of  the  law,  have  gone  from  home 
twenty  or  one  hundred  miles,  commenced  a  dozen  settlements  in 
one  month,  and  next  year  worked  a  week  on  each,  and  so  on.  This, 
and  every  thing  like  if,  is  not  as  directed  by  the  law.  And  again, 
holders  of  great  numbers  of  warrants  have  hired  the  same  man  to 
make,  and,  in  their  language,  to  keep  up,  twenty  settlements  or  so 
many  of  the  tracts  for  which  they  had  warrants.  The  law  of  1786 
was,  when  enacted,  supposed  to  be  sufficiently  particular — personal 
resident  settlement,  intention  to  make  it  the  place  of  abode  and 
means  of  supporting  a  family— continued  from  time  to  time  ;  but  all 
these  might  be  simulated.  This  act  prescribes  when  to  commence, 
the  quantity  to  be  cleared  and  cultivated,  the  building  a  house,  resi- 
dence of  a  family  therein  and  that  for  five  years — these  words  "for  five 
years,"  come  instead  of  the  words  "from  time  to  time,"  in  the  former 
law.  This  construction  of  the  sentence,  which  from  the  first  struck 
our  own  judges,  cures  all  the  bad  grammar,  and  the  supposed  incon- 


Sept.  1832.  J  OF  PENNSYLVANIA.  93 

[Campbell  v.  Galbreath.] 

sistency,  which  was  found  by  judges  not  acquainted  with  the  nature 
and  history  of  title  by  actual  settlement,  and  can  deceive  no  one 
who  was  acquainted  with  the  law  on  imptovements.  There  is 
another  part  of  this  sentence,  which  one  side  in  court  uniformly  read 
in  an  under  tone,  and  never  afterwards  mentioned.  No  warrant  or 
survey  shall  vest  any  title  in  or  to  the  land  described,  unless,  &c. ; 
sometimes  when  these  words  have  pressed  themselves  on  a  court, 
the  common  law,  as  applied  to  contracts  between  man  and  man,  and 
the  learning  on  conditions  precedent  and  subsequent,  is  brought  in. 
The  common  law  is  declared  to  be  in  force,  to  a  certain  extent,  by 
our  constitution  and  several  acts  of  assembly  ;  but  it  is  only  in  force 
until  our  own  legislature  make  provision  on  the  subject,  and  instantly 
the  common  law  so  far  ceases  and  is  extinct,  and  the  enactments 
of  our  own  legislature  on  that  subject  become  the  law  of  the  land  ; 
and  when  our  own  statute,  in  terms  which  cannot  be  mistaken, 
says,  no  title  to  lands  which  it  offers  for  sale  shall  vest,  until  a  cer- 
tain thing  is  done,  in  a  certain  way,  there  is  and  can  be  but  one  in- 
quiry, viz.,  Had  the  legislature  power  to  pass  such  an  act]  and  to  that 
question,  in  this  case,  there  can  be  but  one  answer. 

If  the  common  law  is  at  all  to  be  resorted  to  on  this  subject,  it  will, 
as  I  believe,  furnish  a  different  rule  as  applicable  to  those  who  claim 
under  a  statute ;  and  that  rule  is,  that  when  a  right  is  given  by 
statute,  he  who  claims  that  right  must  bring  his  case  within  the 
terms  of  the  statute.  What  is  required  by  law  to  be  done,  must  be 
done,  or  no  right  attaches.  And  this  rule  is  admitted  and  supported 
to  its  full  extent  by  the  supreme  court  of  the  United  States,  in  Wilson 
v.  Mason,  I  Cranch  45,  97,  98,  as  applied  to  grants  of  land  under  the 
laws  of  Virginia  ;  and  in  that  case  a  man  who  had  paid  his  money, 
and  got  his  survey  returned  before  any  adverse  claim,  but  who, 
instead  of  performing  what  was  required  by  the  act,  had  substituted 
what  he  thought  was  equivalent,  was  declared  to  have  no  title  in 
law  or  equity  ;  and  the  owner  of  a  subsequent  office  title,  and  who 
had  full  notice  of  all  that  had  been  done  by  his  opponent,  held  the 
land ;  and  in  that  case  it  was  not  imagined  that  any  act  of  the 
state,  claiming  the  forfeiture,  was  necessary.  I  proceed  to  quote 
the  residue  of  section  nine,  observing  that  the  whole  section  is 
comprised  in  one  sentence  :  "  and  in  default  of  such  actual  settle- 
ment and  residence,  it  shall  and  may  be  lawful  to  and  for  this  com- 
monwealth to  issue  new  warrants  to  other  actual  settlers,  for  the  said 
lands,  or  any  part  thereof,  reciting  the  original  warrant,  and  that 
actual  settlement  and  residence  have  not  been  made  in  pursuance 
thereof,  and  so  often  as  defaults  shall  be  made  for  the  time  and  in  the 
manner  aforesaid,  which  new  grants  shall  be  under  and  subject  to  all 
and  every  the  regulations  contained  in  this  act :  provided  always, 
that  if  any  such  actual  settler,  or  any  grantee  in  any  such  original 
or  succeeding  warrant,  shall,  by  force  of  arms  of  the  enemies  of  the 
United  States,  be  prevented  from  making  such  actual  settlement, 
or  be  driven  therefrom,  and  shall  persist  in  his  endeavours  to  make 


94  SUPREME  COURT  [Pittsburgh, 

[Campbell  v.  Galbreath.] 

such  actual  settlement  as  aforesaid,  then,  in  either  case,  he  and  his 
heirs  shall  be  entitled  to  hold  the  said  lands  in  the  same  manner  as 
if  the  actual  settlement  had  been  made  and  continued."  If  there 
could  be  any  doubt  on  the  construction  of  the  first  part  of  the  sen- 
tence, this  would  remove  it.  Most  clearly,  by  the  first  part,  the 
claimant,  whether  he  had  a  warrant  or  not,  must  make  the  actual 
settlement  there  described  and  then  follow  ;  and  in  default  of  suck 
actual  settlement  and  residence,  &c.  the  land  is  to  be  regranted  and 
so  on  as  often  as  default  is  made ;  and  in  the  proviso,  again,  we 
have  the  expression  such  actual  settlement ;  it  is  not  in  default  of 
making  an  actual  settlement,  it  is  such  actual  settlement,  and  in  one 
place,  the  actual  settlement. 

There  is  no  colour  for  the  supposition  that  such  actual  settlement 
as  is  there  described,  could  be  dispensed  with  in  favour  of  a  war- 
rantee, more  than  a  settler  without  warrant.  In  default  of  such  ac- 
tual settlement,  new  warrants  are  to  issue.  The  phrase  "  new  war- 
rants" can  only  apply  to  cases  where  warrants  had  before  issued  ; 
and  the  provision,  "  that  the  lands  shall  be  regranted  so  often  as 
default  of  settlement  occurs,  and  that  every  new  grant  shall  be 
subject  to  all  and  every  regulation  contained  in  the  act,"  ought  to 
have  put  an  end  to  all  question  as  to  whether  the  object  of  the  legis- 
lature was  to  get  the  price  of  the  land,  or  to  increase  its  population 
and  wealth  and  strength  by  securing  an  industrious  and  hardy 
population.  It  did  not  mean  to  give  away  its  lands  ;  but  that  its 
determination  was  never  to  part  with  the  title  until  each  tract  was 
a  cultivated  farm,  supporting  a  family,  is  most  clear. 

The  proviso  does  not  dispense  with  the  necessity  of  such  actual 
settlement,  it  only  suspends,  in  certain  events,  the  time  within  which 
it  is  to  be  made.  To  raise  a  doubt  on  the  subject,  you  must,  in  the 
face  of  every  provision  of  the  law,  assume  that  the  warrantee  is  not 
as  much  bound  to  make  the  actual  settlement  directed,  as  if  he  settled 
without  a  warrant ;  and,  in  opposition  to  the  universal  usage  of  the 
English  language,  you  must  say,  there  is  no  difference  between  the 
meaning  of  the  words  "  attempt,"  "  endeavour"  and  "  persist."  Nay, 
more,  that  "  persist  in  his  endeavours"  only  means  to  make  an  actual 
settlement,  by  clearing,  fencing,  and  cultivating,  at  least  two  acres 
for  every  hundred  contained  in  one  survey  ;  that  "  erecting  a  house, 
for  the  habitation  of  man,  and  residing  five  years  thereon,"  means,  he 
shall  make  an  attempt  to  settle  on  the  land.  Nay,  it  is  still  worse  ; 
you  must  say  that,  "  if  driven  therefrom,  he  shall  persist  in  his  en- 
deavours to  make  such  actual  settlement,"  means,  that  if  he  is 
driven  therefrom,  he  need  not  return,  and  that,  in  such  case,  the 
expression  "  persist  in  his  endeavours  to  make  such  settlement,"  has 
no  meaning,  and  was  not  intended  to  have  any  meaning. 

The  owners  of  warrants,  and  those  who  settled  without  warrants, 
came  early  into  collision,  and  on  each  side  contended  for  a  construc- 
tion not  warranted  by  the  law.  The  grantees  of  warrants  obtained 
patents,  without  even  commencing  a  settlement,  on  certificates  from 


Sept.  1832.]  OF  PENNSYLVANIA.  95 

[Campbell  v.  Galbreath.J 

two  justices  of  the  peace  that  they  had  been  prevented  by  enemies ; 
and  the  persons  claiming  by  settlement,  contended  that  warrants 
were  void  unless  settlement  commenced  within  two  years  from  date 
of  warrant.  The  war  raged  during  the  whole  of  the  two  years,  or 
during  a  great  part  of  it. 

This  matter  was  brought  before  the  supreme  court  of  this  state  at 
March  term  1800  (The  Commonwealth  v.  Cox,  4  Doll.  170),  and  the 
decision  was,  "  that  in  all  events,  except  the  death  of  the  party,  the 
settlement  described  in  the  act,  continued  for  five  years,  must  pre- 
cede the  vesting  the  estate  ;  and  that  though  the  prevention  by  ene- 
mies continued  the  whole  of  five  years,  and  the  grantee  persisted  in 
his  endeavours  during  all  that  period,  yet  he  must  complete  the  set- 
tlement after  prevention  ceased,  or  no  title  vested;  in  other  words, 
the  war  excused  during  its  continuance,  but  settlement  must  be  com- 
menced within  two  years  after  the  peace,  and  be  continued  accord- 
ing to  the  act,  or  no  title  vested. 

In  1802,  the  contest  still  raging,  even  to  riots  and  bloodshed,  an 
act  of  assembly  to  continue  in  force  two  years  was  passed,  prescribing 
a  mode  intended  to  terminate  the  dispute.  4  Doll.  237.  This  pro- 
posed two  questions.  The  answer  to  the  first  is  as  before,  that  the 
terms  required  by  the  act  must  be  complied  with  ;  "  for  the  legisla- 
ture regarded  a  full  compliance  with  the  condition  of  settlement  and 
residence  as  an  indisputable  part  of  the  purchase,  or  consideration  of 
the  lands  so  granted."  But  the  court  gave  full  scope  to  the  proviso, 
and  decided  that  the  time  did  not  begin  to  run  during  the  war,  or 
was  suspended  during  its  continuance  ;  and  that  where  a  person, 
within  two  years  of  the  date  of  the  warrant,  or  as  the  case  stood, 
within  two  years  of  the  23d  December  1795,  the  date  of  ratification  of 
Wayne's  treaty,  sat  down  on  land  granted  by  warrant,  and  kept  the 
warrantee  from  making  a  settlement,  such  person  should  not  object 
that  a  settlement  was  not  made,  when  he  himself  prevented  the 
warrantee  from  making  it. 

On  this  subject  there  was  no  diversity  of  decision  in  the  courts  of 
this  state.  See  cases  hereafter  cited. 

But  I  cannot  say  as  much  of  the  construction  of  another  clause  of 
this  section,  viz.  "  in  default  of  such  settlement  and  residence,  it 
shall  and  may  be  lawful  for  the  commonwealth  to  issue  new  warrants 
to  other  actual  settlers,  for  the  said  land,  or  any  part  thereof,  reciting 
the  original  warrants,  and  that  actual  settlement  and  residence  have 
not  been  made  in  pursuance  thereof,  and  so  often  as  default  shall  be 
made  for  the  time,  and  in  the  manner  aforesaid  ;  which  new  grants 
shall  be  under,  and  subject  to  all  and  every  the  regulations  con- 
tained in  this  act."  This  clause  has  given  rise  to  a  contest  not  yet 
settled,  as  to  the  nature  and  necessity  of  these  warrants  re-granting 
the  land,  and  to  whom  they  could  be  issued.  The  term  vacating 
warrant  is  not  in  this  act,  or  any  other  act  on  the  subject,  until  1804  ; 
it  was  not  used  in  court  for  several  years.  It  is  now  used,  and  used 
very  improperly.  Under  the  proprietary  government,  the  legislature 


96  SUPREME  COURT  [Pittsburgh, 

[Campbell  v.  Galbreath.] 

never  passed  any  law  as  to  the  mode  of  selling  the  lands  ;  or  if  they 
did,  the  king  never  confirmed  such  act.  The  proprietor  was  sole 
owner  of  the  soil,  and  disposed  of  it  on  his  own  terms.  The  officers 
of  the  land  office  were  his  attorneys,  in  fact,  and  they,  together  with 
the  commissioners  of  property,  and  the  governor,  for  the  time, 
changed  these  regulations  at  their  pleasure.  There  was  a  time 
when  these  officers  issued  vacating  warrants,  and  as  the  records  of 
the  land  office  are  very  defective,  we  know  little  of  them  :  from  my 
researches  I  would  say,  they  generally  issued  at  the  instance  of 
the , warrantee  ;  and,  in  every  case,  the  warrantee,  if  he  had  paid 
money,  got  a  credit  for  that  money,  as  the  price  of  other  lands. 
They  never  stated  the  reason  of  vacating,  or  at  least  generally 
they  did  not ;  and  in  two  of  the  three  cases  in  which  we  know 
of  their  being  questioned  in  court,  the  title  under  them  was  held 
null,  because  there  was  proof  that  the  warrantee  did  not  consent. 
After  Mr  Tilghman  became  secretary  of  the  land  office,  none  were 
ever  issued.  He  was  a  good  lawyer.  In  his  time,  if  a  man  had 
a  warrant  and  survey  returned,  with  or  without  a  patent,  and  it 
was  discovered  that  a  prior  appropriation  would  take  away  the  land, 
such  person  on  making  this  appear  to  the  officers  of  the  land  office, 
executed  a  release  on  the  back  of  the  warrant  in  the  land  office,' 
and  got  a  credit  for  the  money  paid,  with  which  he  could  take 
another  warrant  for  any  vacant  land.  And  under  the  state,  by  the 
act  of  the  29th  of  March  1792,  the  same  thing  was  done,  with  this 
difference,  that  the  deputy  surveyor  certified  that  the  land  was  taken 
by  a  prior  right,  and  except  for  the  purpose  of  obtaining  a  credit  for 
the  money  paid,  no  act  of  the  officers  of  the  land  office  was  ever 
necessary  to  give  validity  to  a  second  warrant  for  land,  before  grant- 
ed illegally,  either  by  the  proprietaries  or  the  state,  unless  it  is 
necessary  by  this  act.  A  warrant  for  lands  purchased  from  the  In- 
dians, was  sometimes  unexecuted  until  a  new  purchase  from  the 
Indians,  and  then  surveyed  and  returned,  and  perhaps  patented  on 
lands  in  such  new  purchase.  Such  warrant,  so  executed,  gave  no 
tide  under  the  proprietors  or  under  the  state,  and  land  embraced  by 
it  might  be  taken  and  held  by  a  new  warrant,  calling  for  land  in  the 
purchase  in  which  it  lay,  or  by  settlement  without  warrant.  Since 
1794  (until  the  act  of  1814),  no  warrant  could  issue  unless  to  one 
who  had  complied  with  the  terms  of  settlement  in  the  act  of  1794 ; 
if  one  who  had  not  made  such  settlement  got  a  warrant  and  survey 
and  return,  all  was  void,  and  any  actual  settler  cculd  take  the  land, 
and  no  vacating  warrant  or  other  act  of  the  state  or  its  officers  was 
necessary.  See  Johnson  v.  Thompson,  6  Binn.  68 ;  Baxter  v.  Baker, 
4  Binn.  413. 

I  proceed  to  notice  the  several  clauses  of  the  act  of  3d  April  1792, 
and  of  other  acts  bearing  on  this  subject. 

Section  three  directs  that  a  warrant  shall  issue  to  any  person  who 
may  have  settled  or  improved,  or  to  any' person  who  is  desirous  to 
settle  and  improve,  &c.,  the  grantee  to  pay  the  purchase  money  and 


Sept.  1832.]  OF  PENNSYLVANIA.  97 

[Campbell  v.  Galbreath.] 

fees  of  office ;  and  section  ten  gives  a  settler  ten  years  to  take  out  his 
warrant,  and  the  time  by  subsequent  laws  is  continued  to  this  hour. 

In  section  five  is  this  provision,  that  the  deputy  surveyor  shall  not, 
by  virtue  of  any  warrant,  survey  any  tract  of  land  that  may  have  been 
actually  settled  and  improved  prior  to  the  date  of  the  entry  of  such  war- 
rant with  the  deputy  surveyor  of  the  district,  except  for  the  owner  of 
such  settlement  and  improvement. 

Section  eight.  On  payment  of  his  fees,  and  on  application  of  any 
person  who  has  made  an  actual  settlement  and  improvement  on  the 
lands,  &c.,  the  deputy  surveyor  shall  survey  and  mark  out  the 
lines  of  the  tract  of  land  to  which  such  person  may,  by  conforming 
to  the  provisions  of  this  act,  become  entitled  by  such  settlement  and 
improvement. 

Section  nine,  after  declaring  what  under  this  law  shall  constitute 
the  settlement  by  it  required,  whether  with  or  without  a  warrant, 
proceeds  to  say,  "  and  in  default  of  such  actual  settlement  and  resi- 
dence, it  shall  and  may  be  lawful  to  and  for  this  commonwealth  to 
issue  new  warrants  to  other  actual  settlers,  for  the  said  lands  or  any  part 
thereof,  reciting  the  original  warrants,  and  that  actual  settlement  and 
residence  have  not  been  made  in  pursuance  thereof,  &c."  The  grants 
are  to  be  to  actual  settlers  ;  not  a  word  is  said  of  vacating  the  prior 
warrant,  no  power  is  given  to  the  officers  of  the  land  office  to  decide 
whether  it  has  been  avoided  by  want  of  compliance  with  the  law, 
and  in  point  of  fact  the  warrants  so  granted,  although  called  vacating 
warrants,  recite  the  words  of  the  act,  and  if  any  such  warrant  has 
declared  the  prior  warrant  to  be  vacated,  it  would,  so  far,  be  of  no 
effect  if  the  grantee  of  prior  warrant  could  prove  that  he  had  com- 
plied with  the  terms. 

If  there  could  be  any  doubt  under  this  act,  I  apprehend  it  is  re- 
moved by  subsequent  laws.  Before  any  second  warrant  could  issue, 
came  the  act  of  the  22d  of  April  1794,  expressly  relating  to  this  tract 
of  country. 

Section  one.  From  and  after  the  passing  of  this  act,  no  applica- 
tion shall  be  received  in  the  land  office  for  any  unimproved  land 
within  that  part,  &c. 

Section  two.  No  warrant  shall  issue  after  the  15th  of  June  next, 
for  any  land  within  that  part  of  this  commonwealth  called  the  New 
Purchase  (embracing  the  county  in  question),  except  in  favour  of 
persons  claiming  the  same  by  virtue  of  some  settlement  and  improve- 
ment thereon.  Then  came  the  act  of  the  22d  of  September  1794. 

Section  one.  From  and  after  the  passing  of  this  act,  no  applica- 
tion shall  be  received  at  the  land  office  for  any  lands  within  the  com- 
monwealth, except  for  such  lands  whereon  a  settlement  has  been 
made,  or  hereafter  shall  be  made,  grain  raised,  and  a  person  or  per- 
sons residing  thereon.  This  has  been  repealed  as  to  purchase  1768, 
and  all  prior  purchases  by  the  act  of  the  28th  of  March  1814,  and  as 
to  that  part  of  New  Purchase  east  of  Alleghany  river  by  the  act  of 
the  10th  of  March  1817,  but  is  in  full  force  where  the  lands  in  ques- 

N 


98  SUPREME  COURT  [Pittsburgh, 

[Campbell  v.  Galbreath.] 

lion  lie,  i.  e.  north  and  west  of  Ohio,  Alleghany,  and  Conewango. 
After  the  case  of  The  Commonwealth  v.  Coxe,  already  cited,  the  legis- 
lature, anxious  to  settle  the  titles  in  this  part  of  the  state,  and  to 
terminate  disputes  which  were  defeating  the  objects  of  the  law  and 
ruining  both  parties,  passed  the  act  of  the  2d  of  April  1802.  This 
act,  "  to  settle  contending  claims  to  lands  within  this  common- 
wealth, &c."  had  not  the  desired  effect.  It  was  abused  as  uncon- 
stitutional by  those  who  always  abuse  a  law  for  that  reason,  when 
there  is  no  other  objection  to  it,  and  by  those  who  had  forgotten,  or 
never  knew  that  by  the  constitution  of  this  state,  "  the  legislature 
shall  vest  in  said  courts  such  other  powers  to  grant  relief  in  equity 
as  shall  be  found  necessary,  and  may  from  time  to  time  enlarge  or 
diminish  those  powers,  or  vest  them  in  other  courts,  as  they  shall 
judge  proper."  Now  that  a  dispute  affects  veiy  many  people,  and  can 
not  be  terminated  at  law  without  a  multitude  of  suits,  and  great 
delay  and  expense,  is  a  well  known  foundation  of  equity  jurisdiction, 
more  than  once  acted  on  by  our  legislature ;  as  the  act  of  1 799  ap- 
pointing commissioners  to  settle  disputes  under  Connecticut  title, 
&c.  To  proceed:  In  this  law,  and  under  hopes  that  the  tribunal 
organized  by  it  would  terminate  all  questions,  it  is  enacted,  section 
four,  "  in  order  to  prevent  the  confusion  that  would  arise  from  i^su- 
ing  different  warrants  for  the  same  land,  and  to  prevent  law  suits  in 
future  respecting  grants  from  the  land  office,  under  the  act  of  the  3d 
of  April  1792,  it  is  enacted,  "  that  from  and  after  the  passing  of  this 
act,  the  secretary  of  the  land  office  shall  not  grant  any  new  warrant 
for  land  which  he  has  reason  to  believe  hath  been  already  taken  up 
under  a  former  warrant,  but  in  all  such  cases  he  shall  cause  a  dupli- 
cate copy  of  the  application  to  be  made,  on  which  duplicate  he  shall 
write  his  name,  with  the  day  and  year  on  which  it  was  presented, 
and  file  the  original  in  his  office,  and  deliver  the  copy  to  the  party 
applying;  provided  that  on  every  application  so  to  be  made  and  filed, 
shall  be  certified  on  the  oath  or  affirmation  pf  one  disinterested  wit- 
ness, that  the  person  making  such  application,  or  in  whose  behalf 
such  application  is  made,  is  in  actual  possession  of  the  land  applied  for, 
and  such  certificate  shall  mention  also  the  time  when  such  possession 
was  taken;  and  the  application  so  filed  in  the  secretary's  office  shall 
be  entitled  to  the  same  force  and  effect,  and  the  same  priority  in 
granting  warrants  to  actual  settlers,  as  though  the  warrants  had  been 
granted  when  the  application  was  filed. 

It  must  be  observed,  that  this  law  relates  expressly  to  warrants 
for  lands  for  which  a  former  warrant  had  issued.  That  they  are 
here  called  new  warrants.  The  term  vacating  warrant,  as  applied  to 
the  matter  in  question,  had  not  been  used  by  the  legislature  or  by 
any  court.  That  such  application  for  such  new  warrant  must  be 
accompanied  with  proof  of  actual  settlement  and  personal  residence, 
and  the  date  of  such  settlement  must  also  be  proved.  That  no  time 
is  prescribed  within  which  a  person  residing  on  the  land  should  ap- 
ply, this  is  left  as  it  stood  under  section  ten  of  the  act  of  the  3d  of 


Sept.  1832.]  OF  PENNSYLVANIA.  99 

[Campbell  v.  Galbreath.] 

April  1792,  enlarged  by  the  act  of  the  26th  of  January  1802,  which 
extends  time  to  actual  settlers,  for  taking  warrants  beyond  ten 
years.  This  act  has  not  been  repealed,  but  was  to  continue  in  force 
two  years.  But  the  term  vacating  warrant  was  introduced  in 
court  soon  after  this,  and  certain  decisions  made,  which  I  shall  pre- 
sently notice,  and  this  occasioned  the  act  of  the  3d  of  April  1804, 
which  enacts,  section  one,  "  all  applications  of  actual  settlers,  for 
lands  lying  north  and  west,  &c.,  under  the  act  of  the  3d  of  April 
1792,  describing  particularly  the  lands  applied  for  and  filed  with 
the  secretary  of  the  land  office,  vouching  such  other  requisites 
as  are  provided  for  by  the  act  of  the  22d  of  September  1 794,  to  pre- 
vent the  issuing  of  any  more  applications  or  issuing  any  more  war- 
rants, &c.,  shall,  for  two  years  from  and  after  the  passing  of  this 
act,  entitle  the  applicant,  his  heirs  and  assigns,  to  all  the  privileges 
that  an  original  or  vacating  warrant  would  entitle  them  to,  and  on 
the  trial  of  all  suits  brought  or  to  be  brought,  between  warrantees 
and  actual  settlers,  concerning  lands  situate  as  aforesaid,  the  actual 
settler  shall  be  permitted  to  plead  and  make  proof  of  his  improvement 
and  residence  as  fully  and  with  equal  force  and  effect,  as  if  such  set- 
tler had  obtained  a  vacating  warrant,  &c."  The  rest  of  the  section 
is  not  mentioned  in  this  case. 

The  former  act  had  said  in  terms  that  the  settler's  title  should  be 
good,  unless  a  better  was  shown,  without  a  new  warrant,  and  this 
one  says  the  same  thing,  and  that  he  shall  be  permitted  to  prove  his 
settlement  in  court,  in  suits  brought  or  to  be  brought.  The  applying 
this  rule  of  evidence  to  suits  brought,  offended  the  courts,  it  was 
supposed  to  imply  some  censure  on  some  decisions.  Let  us  now  see 
what  these  decisions  were. 

The  actual  settlers  were  as  unreasonable  as  the  warrant  holders. 
The  warrant  holders  did  not  even  for  one  moment  suppose  they 
could  hold  the  land  without  complying  with  the  terms  of  the  act. 
This  is  abundantly  proved  by  the  testimony  adduced  by  themselves, 
in  the  case  of  The  Commonwealth  v.  Coxe.  They  collected  provisions, 
appointed  agents,  and  offered  to  furnish  provisions,  and  give  a  part 
of  a  tract  to  any  person  who  would  settle  on  it ;  but  they  went  too 
far — they  employed  the  same  man  to  settle  on  and  improve  a  dozen 
tracts.  This  was  so  palpable  an  evasion  of  the  law,  that  the  men 
thus  employed  left  them  and  began  to  improve  for  themselves,  and 
with  equal  absurdity  to  work  on  and  claim  several  tracts  for  each 
man  by  improvement.  The  settlers  went  further,  they  threw  away 
the  proviso  totally,  and  held  the  warrant  void  unless  an  actual  per- 
sonal resident  settlement  on  it  within  two  years  from  its  date, 
although  the  Indian  war  had  lasted  all  the  two  years  ;  and  a  man 
who  went  to  the  country  first  in  1798,  would  resist  a  warrant  holder 
and  tell  him  he  had  no  title,  would  not  permit  him  to  comply  with 
the  proviso  according  to  its  terms,  in  short,  would  not  hear  of  the 
grantee  having  two  years  from  the  treaty  at  Greenville,  in  Decem- 
ber 1795.  This  matter  was  settled  by  our  supreme  court  as  I  have 


100  SUPREME  COURT  [Pittsburgh, 

[Campbell  v.  Galbreath.] 

stated,  and  in  settling  it,  they  gave  41  caution  to  those  who  had  thus 
settled  before  the  two  years  after  the  treaty  had  expired,  though  no 
such  person  was  before  them  ;  and  I  cannot  find  a  word  on  the  sub- 
ject in  the  voluminous  report  of  the  argument  of  counsel.  The 
court  had  decided  in  terms,  (4  Doll,  200)  that  although  the  warrantee 
had  begun  to  make  the  settlement,  and  was  driven  therefrom,  yet  if 
he  did  not  complete  it  after  the  peace  within  the  time  prescribed, 
according  to  their  construction  of  the  proviso,  the  condition  of  actual 
settlement  and  residence  was  not  dispensed  with  or  extinguished ; 
and  in  pages  201,  202,  the  court  adhere  to  the  construction,  that  in 
all  events  except  the  death  of  the  party,  the  actual  settlement  and 
residence  shall  precede  the  vesting  of  the  complete  and  absolute 
estate.  Yet  in  the  conclusion  of  the  opinion,  not  vesting  is  dropped, 
and  the  court  say,  "  if  the  lands  are  forfeited  in  the  eye  of  the  law, 
though  they  have  been  fully  paid  for,  the  breach  of  the  condition  can 
only  be  taken  advantage  of  by  the  commonwealth,  in  the  method  prescribed 
by  law.  In  no  other  circumstance  than  that  of  adding  an  opinion, 
on  a  point  not  discussed,  to  other  points  fully  argued,  could  the 
court  have  said  in  one  place  the  title  did  not  vest,  and  in  another, 
that  if  forfeited,  the  commonwealth  alone  could  take  advantage  of  it. 
The  one  was  making  it  a  condition  precedent,  the  other  subsequent ; 
I  have  endeavoured  to  show  that  the  law  of  neither  applied,  that  it 
was  a  legislative  enactment,  which,  on  that  subject,  controlled  the 
common  law  and  was  alone  the  law.  The  judge  there  cites,  Mor- 
ns v.  Neighman,  4  Dall.  209,  where  some  opinion  was  given  against 
a  settler  who  entered  before  the  two  years  had  expired.  See  also  some 
points  exactly  in  the  same  situation,  4  Doll.  242. 

The  two  next  cases,  Shippen  v.  Jlughenbaugh,  4  Yeates  328,  and 
Jones  v.  Jinderson,  4  Yeates  569,  were  each  of  them  cases  in  which 
the  defendant  had  entered  within  the  time  allowed  the  warrantee  to 
commence  his  actual  settlement ;  and  in  the  first  of  them  had  ac- 
tually resisted  the  warrantee  and  prevented  him ;  in  the  last  the 
warrantee  had  never  come  near  the  land,  but  it  was  held  that  the 
defendant,  settling  down  on  the  land  before  the  two  years  from  the 
22d  of  December  1795,  was  resisting  the  warrantee,  and  preventing 
him  from  complying  with  the  law,  although  such  warrantee  never 
crossed  the  Alleghany  river  in  his  life,  or  offered  or  even  spoke  of 
making  a  settlement  on  the  land.  And  the  second  defendant,  al- 
though he  had  no  application  filed  under  either  the  act  of  1802  or 
of  the  3d  of  April  1804,  could  not  give  it  in  evidence,  because  filed 
after  the  suit  was  brought;  nor  could  he  give  any  evidence  of  his  ac- 
tual settlement  and  residence — in  other  words,  that  the  act  of  the  3d 
of  April  1804  was,  so  far  as  related  to  suits  then  brought,  unconstitu- 
tional ;  and  the  court  say,  in  page  573,  "  the  application  and  set- 
tlement would  be  evidence  in  a  suit  brought  by  the  defendant  after 
being  turned  out." 

These  two  last  are  nisi  prius  cases.  The  same  questions  arose 
and  were  argued  in  bank  in  Hazard's  Lessee  v.  Lowry,  I  Binn.  166, 


Sept.  1832.]  OF  PENNSYLVANIA.  101 

[Campbell  v.  Galbreath.] 

and  in  Wright  and  Porter  v.  Small,  4  Yeates  562,  and  nothing  like 
the  opinions  expressed  in  the  two  preceding  cases  is  found  ;  though 
if  adopted  it  would  have  settled  both  the  cases :  and  the  case  of 
Wright  v.  Small,  all  the  improvements  of  the  defendant,  made  after 
the  plaintiffs  warrant,  were  given  in  evidence ;  and  further,  the 
doctrine  of  improvements,  their  prosecution  to  actual  residence,  and 
their  continuance  as  fully  gone  into. 

In  Cosby  v.  Brown,  2  Binn.  124,  the  first  position  of  the  judge  in 
Jones  v.  Anderson  is  overruled,  and  much  more,  for  it  is  there  decided 
that  although  a  man  is  actually  resisted  or  actually  driven  from  his 
settlement  commenced,  he  cannot  retire  from  the  ground  and  say  he 
has  been  prevented,  and  on  this  ground  support  an  ejectment  at  any 
indefinite  time  afterwards  short  of  twenty-one  years.  Such  unrea- 
sonable delay  may  take  place  as  to  induce  the  younger  settler,  who 
had  resisted  another,  to  suppose  that  other  to  have  relinquished  his 
title,  and  in  that  case  it  would  be  unreasonable  that  the  labour  of 
years  should  be  swept  away. 

In  Young  v.  Beatty,  1  Serg.  fy  Rawle  74,  the  residue  of  the  deci- 
sion in  Jones  v.  Jlnderson  was  overruled,  and  even  Judge  Yeates,  who 
decided  Jones  v.  Jlnderson,  agreed  that  residence  of  actual  settlement 
on  a  tract  granted  by  warrant  and  surveyed  and  returned,  which 
settlement  was  commenced  more  than  two  years  after  Wayne's 
treaty,  must  be  received  in  evidence ;  he  appears  to  adhere  to  his 
former  opinion,  to  vacating  warrants,  and  that  the  act  of  the  3d  of 
April  1804  was  null.  But  Chief  Justice  Tilghman  and  Bracken- 
ridge  say,  "  there  can  be  no  doubt  that  a  vacating  warrant,  issued 
after  the  entry  of  the  defendant,  would  confirm  his  title,  even  supposing 
it  not  to  be  good  without  such  warrant,  because  the  title,  being  in  the 
commonwealth  by  the  default  of  the  plaintiff  in  not  complying  with  the 
conditions  of  sale,  may  be  granted  to  a  third  person  at  any  time,  and  it  is 
immaterial  to  the  plaintiff  whether  such  grant  be  made  before  the  entry  of 
such  third  person  or  after.  In  this  case  the  plain  and  clear  proposi- 
tion is  asserted,  that  unless  the  conditions  expressed  in  the  act  of  the 
3d  of  April  1792  have  been  complied  with,  the  title  remains  in  the 
commonwealth,  and  is  not  in  the  warrantee  who  failed  to  comply. 
Our  supreme  court  had  twice  decided  the  same  way  before  in  The 
Commonwealth  v.  Coxe,  and  The  Attorney- General  v.  Grantees.  Judge 
Washington  had  so  decided  in  Balfour  v.  Meade,  4  Doll.  368,  and 
before  in  Huidekoper  v.  Douglas.  But  the  supreme  court  of  the 
United  States  had  decided  otherwise  in  this  last  case,  on  appeal,  4 
Doll.  392  ;  but  our  supreme  court  never  changed  its  decision,  though 
some  of  the  judges  of  that  court,  sitting  in  the  circuit  court,  seemed 
to  think  themselves  bound  by  the  decision  of  the  supreme  court  of 
the  United  States. 

The  opinion  in  Young  v.  Beatty,  when  duly  considered,  made  an  end 
of  all  question  as  to  the  necessity  of  a  vacating  warrant,  as  between  an 
actual  settler  and  an  original  warrantee  who  had  not  complied  with 
the  terms  of  the  law.  If,  in  the  language  of  that  and  the  other 


102  SUPREME  COURT  [Pittsburgh, 

[Campbell  v.  Galbreath.] 

cases  mentioned,  the  title  never  passed  to  the  warrantee  (in  the  lan- 
guage of  the  act  "no  warrant  shall  vest  any  title,"  &c.),  the  title 
was  in  the  commonwealth  ;  the  warrantee  who  had  not  made  the 
settlement,  could  not,  after  two  years,  call  on  any  person  in  possess- 
ion to  show  any  title,  unless  he  had  some  contract  with  such  settler, 
or  had  been  prevented  by  him  within  the  two  years ;  and  the  peo- 
ple and  the  profession  thought  the  question  at  rest. 

Seven  years  after  came  the  case  of  Skeen  v.  Pearce,  7  Serg.  <$• 
Rawle  303.  It  is,  all  things  considered,  the  strangest  case  to  be 
found  in  any  law  book.  We  are  not  even  told  whence  it  came  ; 
no  facts ;  no  argument  of  counsel ;  no  opinion  of  the  court  from 
which  it  came  is  to  be  found ;  whether  the  point  occurred  in  the 
cause,  or  was  made  by  counsel  in  argument,  we  know  not. 

"  The  single  point,"  says  the  judge,  "  whether  any  person,  with- 
out obtaining  a  vacating  warrant  or  filing  an  application,  can  acquire 
a  title  to  lands  by  entering  into,  making  a  settlement,  and  procuring 
a  survey,  for  which  another  person  had  previously  obtained  a  war- 
rant, and  had  a  survey  made  under  the  act  of  the  3d  of  April  1792, 
but  had  not  complied  with  the  condition  of  settlement  and  residence 
required  by  the  act ;"  and  this  broad  abstract  question,  not  incuin- 
bered  by  circumstances  or  limited  by  time,  is  answered  broadly,  that 
he  cannot. 

No  notice  is  taken  of  any  decision  of  any  court,  as  to  the  nature 
of  the  title  acquired  by  the  warrantee  under  that  act.  It  is  not  rea- 
soned on.  It  is  assumed  even  without  quoting  the  law.  "  For  this 
condition  broken,  the  state  alone  could  enter."  The  term  "  actual 
settler,"  it  said,  "  employed  frequently  in  the  various  sections  of  the 
act,  is  not  applied  exclusively  to  him  who  had  made  and  continued 
his  settlement,  but  to  one  who  is  desirous  to  settle  and  improve,  as 
distinguished  from  a  warrantee."  The  words  "  actual  settler"  are 
used  in  the  proviso  as  distinguished  from  warrantee,  but  must  be 
construed  to  mean  a  person  who  had  already  commenced  his  settle- 
ment ;  and  again  in  section  ten  ;  and  can  thus  only  mean  one  who 
has  actually  resided  on  the  land  ;  and  is  not  used  in  any  other  part 
of  this  act ;  and  neither  in  this  or  any  other  act,  nor  in  court,  nor  in 
common  parlance,  was  the  term  "  actual  settler"  ever  applied  (ex- 
cept in  this  opinion)  to  any  other  than  to  one  actually  residing  on, 
or,  at  least,  working  on  a  tract  of  land  with  intention  to  reside  ;  it 
cannot  be  applied  to  one  who  intends  to  settle  ;  it  is  used  to  distin- 
guish one  who  has  settled,  from  one  who  intends  to  settle. 

What  is  said  about  an  inquest  of  office,  I  shall  only  notice  by  say- 
ing, none  was  ever  held,  by  common  law,  in  this  state,  only  when 
expressly  directed  by  act  of  assembly  :  these  are  very  different  from 
inquest  of  office  at  common  law  ;  and  I  have  shown  two  cases  de- 
cided by  that  same  court,  composed  of  the  same  judges,  where  land 
granted  by  the  state,  on  warrants  and  money  paid,  and  surveys  re- 
turned, were  decided  invalid — in  one  case  a  subsequent  warrant,  and 
the  other  an  actual  settlement ;  and  no  one  thought,  of  what 


Sept.  1832.]  OF  PENNSYLVANIA.  103 

[Campbell  v.  Galbreath.] 

never  existed,  an  inquest  of  office,  or  a  vacating  warrant  to  be  issued 
by  the  officers  of  the  commonwealth,  who  never  issued  one,  and,  if 
it  is  to  be  issued,  have  no  power  to  issue  one,  or  direct  one  :  although 
filing  an  application  is  mentioned  in  the  question,  the  conclusion  to 
which  the  judge  comes  is,  that  a  vacating  warrant  is  absolutely 
necessary,  in  order  to  acquire  any  title  to  land  granted  over  to  a 
warrantee  who  never  attempted  to  fulfil  one  of  the  terms  prescribed. 
No  regard  is  paid  to  acts  of  assembly.  By  the  act  of  September 
1794,  no  application  can  be  received,  except  for  land  on  which  a 
settlement  shall  have  been  made,  grain  raised,  and  a  person  residing 
thereon.  By  the  act  of  the  2d  of  April  1802,  no  new  warrant,  that  is, 
what  is  now  called  a  vacating  warrant,  shall  issue ;  but  he  who 
wants  one,  shall  file  an  application  and  proof  of  his  actual  settlement 
and  residence  on  the  land,  and  the  time  when  his  improvement 
began  ;  and  this  application  shall  have  the  same  force  and  effect, 
and  give  the  same  priority-  in  granting  warrants,  &c.  But  the 
courts,  or  rather  some  judges  at  nisi  prius,  would  not  allow  of  these 
effects  in  court.  Then  came  the  act  of  the  3d  of  April  1804,  ex- 
pressly referring  to  the  act  of  3d  April  1792,  and  the  act  of  the  22d 
September  1794,  and  directing  that  applications  filed  agreeably  to 
these,  stating  actual,  personal,  resident  settlement,  grain  raised,  and 
a  family  thereon  at  the  time  of  application,  and  proof  when  settle- 
ment commenced,  should  have  the  same  effect  as  a  vacating  war- 
rant. Now  both  these  last  acts  were  direct  declarations  that  no 
vacating  warrant  was  neceseary  ;  that  no  adjudication  of  any  officer 
of  the  state  was  necessary.  Nay  more,  they  were  declarations  that 
title  to  such  land  should  be  acquired  by  actual  settlement,  and  that, 
so  far  from  any  new  warrant  being  necessary,  the  state  would  not 
grant  any  such  new  or  vacating  warrant.  Nay  more,  by  the  act  of 
the  1st  March  1811,  such  settler  who  has  his  survey  returned,  and 
the  deputy  surveyor  is  ordered  to  return  it,  is  to  get  his  patent  on  a 
warrant  of  acceptance  and  payment  of  the  money,  or  giving  a  mort- 
gage for  it,  without  any  vacating  warrant  ever  issuing.  But  more  ; 
by  the  act  of  1792,  the  actual  settler  was  allowed  ten  years  in  which 
to  take  his  warrant  and  pay  his  money  and  interest :  that  time,  by 
sundry  acts,  is  still  extended,  but  his  interest  still  runs  on.  Then 
we  come  to  this  ;  the  laws  say  you  may  settle  ;  may,  after  settling, 
file  your  application,  specifying  the  date  of  interest,  but  we  grant  no 
vacating  warrant ;  you  may  patent  without  such  warrant ;  and  all 
this  you  may  do  now,  or  hereafter,  as  suits  you ;  and  the  case  of 
Skeen  v.  Pearce  says  all  this  may  be  true  ;  but  although  you  have 
settled  agreeably  to  law  ;  are  to  pay  interest  from  settlement ;  are 
allowed  time  to  apply  and  pay,  and  that  time  often  extended,  you 
are,  all  this  time,  liable  to  be  turned  off  by  a  man  who  has  no  title — 
we  know  he  has  no  title ;  but  the  state  must  do  a  certain  act — she 
has  passed  several  laws,  but  they  do  not  come  up  to  the  common  law 
doctrine  as  it  stood  two  centuries  ago  ;  the  acts  of  assembly  quoted 
go  for  nothing  ;  you  must  move  from  your  farm,  and  stay  away  until 


104  SUPREME  COURT  [Pittsburgh, 

[Campbell  v.  Galbreath.] 

the  state  repeals  the  act  of  1802,  and  passes  one  restoring  vacating 
warrants,  and  then  you  may  bring  suit  and  recover  the  land. 

There  may  possibly  have  been  a  state  of  facts  to  which  the  doc- 
trine laid  down  in  Skeen  v.  Pearce  may  have  been  correctly  applied  ; 
as  a  general  or  universal  rule,  it  is  in  the  face  of  every  enactment  of 
the  legislature  ;  it  is,  to  the  extent  laid  down,  supported  by  no  author- 
ity ;  is  inconsistent  with  Young  v.  Beatty,  and,  moreover,  as  a  general 
rule,  is  expressly  overruled  in  Riddle  v.  Albert,  14  Serg.  fy  Rawle 
841.  In  that  case,  the  plaintiff  claimed  under  a  warrant,  survey  and 
return,  but  had  made  no  settlement ;  the  defendant  offered  to  show 
a  settlement,  in  1798  or  1799,  and  continued  possession  ever  since, 
together  with  a  warrant  (not  a  vacating  one)  in  1818;  a  survey, 
return  and  patent ;  this  was  rejected  by  the  common  pleas,  on  the 
authority  of  Skeen  v.  Pearce,  and  the  judgment  reversed,  for  this 
error,  unanimously,  by  this  court ;  and  surely,  if  the  evidence  could 
not  avail  the  defendant,  it  ought  not  to  have  been  received  ;  it  would 
net  be  error  to  reject  it.  This  court  then  say,  "  whether  the  de- 
fendant's title  would  have  been  good  on  the  disclosure  of  all  the  cir- 
cumstances of  the  case,  is  not  now  to  be  decided ;  but,  surely,  he 
had  a  right  to  show  that  the  legal  title  had  been  granted  to  him  by 
the  commonwealth.  There  was  error,  then,  in  rejecting  the  de- 
fendant's evidence,  for  which  the  judgment  must  be  reversed." 

There  is  another  great  mistake  in  Skeen  v.  Pearce  ;  it  is  there  sup- 
posed, that  on  application  of  a  settler  for  land  previously  granted  by 
warrant,  there  is  something  like  a  trial  and  decision  by  the  board  of 
property  and  the  officers  of  the  land  office.  That  it  is  done  on  ex- 
amination of  parties  and  witnesses,  anda  solemn  adjudication,  thatthe 
warrant  before  granted  is  null,  and  shall  be  vacated.  Now  all  this 
is  mistake  of  fact  and  of  law.  The  owner  of  a  warrant  before  granted, 
is  not  cited  nor  heard ;  the  only  evidence  by  law,  and  the  only  evi- 
dence in  fact,  produced,  is,  the  settler,  along  with  his  application 
and  proof  of  settlement,  &c.,  produces  a  survey  by  the  deputy  sur- 
veyor of  the  district,  of  the  lands  for  which  he  applies,  together  with 
a  certificate  of  said  deputy  surveyor,  that  the  land  (if  the  fact  is  so) 
was  granted  by  a  warrant,  specifying  the  name  of  the  warrantee  and 
the  date  ;  and  that  no  settlement  has  been  made  by  the  owner  of 
said  warrant ;  no  witnesses  are  examined,  no  trial  is  had,  no  decision 
is  made  ;  the  application  is  received  and  filed,  and  a  new  warrant, 
reciting  the  former  warrant,  and  that  the  owner  has  failed  to  make 
the  settlement,  directed  by  law  ;  or,  since  181 1,  a  warrant  of  accept- 
ance and  patent  issues  at  once  ;  no  decree  that  the  former  warrant 
be  vacated. 

This  new  warrant  or  patent  is  at  the  risk  of  the  grantee.  If  the 
owner  of  the  former  warrant  contest  it,  the  question,  whether  the  first 
warrantee  had  right  or  no  right,  is  to  be  tried  in  court,  as  all  other 
questions  of  title  are  tried,  and  the  facts  stated  in  the  new  warrant 
must  be  found  in  court  to  be  true.  The  certificate  of  the  deputy 
surveyor  before  mentioned,  is  not  conclusive  ;  it  would,  after  great 


Sept.  1832.]  OF  PENNSYLVANIA.  105 

[Campbell  v.  Galbreath.] 

lapse  of  time,  be  prima  facie  evidence  ;  in  a  recent  case,  it  would 
hardly  be  so. 

On  a  careful  examination  of  all  the  acts  of  assembly  arid  all  the 
decisions,  I  must  conclude,  that  as  a  general  rule,  the  case  of  Skeen 
v.  Pearce  is  not  law.  And  certainly  not  in  this  case,  where  the  de- 
fendant had  complied  literally  and  sirictly  with  the  requisites  pre- 
scribed by  law. 

I  come  now  to  the  particular  exceptions  in  this  case. 

The  facts  contained  in  the  plaintiff's  offer  in  the  bill  of  exceptions  : 
viz.,  that  Walker  and  Lodge  took  out  this  and  other  warrants, 
put  them  into  the  hands  of  the  deputy  surveyor,  procured  surveys  to 
be  made,  and  paid  the  surveyor,  &c.,  were  evidence  to  prove  that 
Lodge  and  Walker  were  the  owners  of  this  and  the  other  warrants. 
To  understand  this,  we  must  recollect,  lhat  at  all  times  in  Pennsyl- 
vania, it  has  been  usual  for  a  man  to  apply  for  warrants  in  the  names 
of  different  persons,  generally  without  those  persons  knowing  any 
thing  of  such  warrants,  until  called  on  to  make  a  deed  poll  for  a 
nominal  consideration,  to  the  person  who  applied  and  paid  for  the 
warrants.  At  times,  rights  were  obtained  on  locations  and  applica- 
tions, on  which  nothing  except,  the  officers'  fees  was  paid  at  the  time 
of  obtaining  them  ;  and  after  the  lapse  of  some  years  doubts  have 
arisen  as  to  who  really  was  the  owner  of  such  locations  and  war- 
rants. As  to  locations,  he  who  procured  and  proved  the  application 
to  be  made,  has  been  proved  by  proving  the  handwriting  in  the 
original  application  on  file,  or  by  proving  who  obtained  the  survey 
and  paid  the  surveyor.  All  this  is  also,  evidence  to  prove  a  right  to 
a  warrant ;  but  as  to  a  warrant,  there  is  better  evidence.  There 
was,  from  1  July  1784  until  the  office  closed  in  September  1794,  a 
day  book  or  blotter,  called  from  the  name  of  the  chief  clerk,  in  whose 
handwriting  it  is,  John  fable's  blotter  ;  in  this  is  found,  I  believe,  in 
many  instances,  the  name  of  the  person  who  actually  paid  for  every 
warrant  or  list  of  warrants,  in  that  time.  Extracts  from  that  book, 
under  seal  of  the  secretary  of  the  land  office,  to  whose  office  those 
books  are  transferred,  are  evidence,  by  act  of  31st  March  1823.  The 
lands  west  of  the  Alleghany,  were  taken  upon  warrants  paid  for  by 
Judge  Wilson,  John  Nicholson,  R.  Manis  and  many  others,  none  of 
whom  were  ever  in  or  near  that  country,  but  they  had  agents  who 
procured  the  surveys,  and  paid  for  them  money  furnished  by  the 
owner.  The  payment  of  surveying  feesis  then  very  equivocal  evidence 
of  ownership  ;  and  when  better  evidence  is  within  the  power  of  the 
party  claiming,  is  not  produced,  ought  to  weigh  but  little;  or  rather, 
ought  to  have  no  more  weight  than  secondary  or  circumstantial  evi- 
dence has,  when  direct  and  positive  evidence,  in  the  power  of  the 
party,  is  withheld;  and  so  the  court  ought  to  have  instructed  the 
jury.  There  is  no  error  in  admitting  what  was  proved  ;  but  the  law 
on  that  defective  evidence  was  not  correctly  given  to  the  jury,  to 
whom  it  ought  to  have  been  left,  whether  there  was  sufficient  evi- 
dence of  ownership. 


106  SUPREME  COURT  [Pittsburgh, 

[Campbell  v.  Galbreath.] 

The  second  and  third  bills  of  exceptions  were  of  declarations  and 
acts  of  Walker  and  Lodge,  and  there  was  no  error  in  admitting  them; 
but  whether  these  declarations  and  acts  were  of  any  validity  or 
ought  to  have  any  effect  in  the  cause,  depended  on  whether  (he  first 
was  made  out  to  the  satisfaction  of  the  jury,  viz.,  that  Walker  and 
Lodge  were  the  owners  of  these  warrants.  If  the  jury  were  satisfied 
that  Lodge  really  paid  for  these  warrants  and  owned  them,  then  his 
declarations  that  Walker  and  Probst  were  equally  interested  with 
him,  must  go  to  the  jury  as  evidence  of  some  interest  also  in  Walker 
and  Probst ;  but  if  there  was  not  evidence  to  satisfy  the  jury  that 
Lodge  was  the  owner,  then  his  declarations  that  he  was  owner,  and 
that  the  others  were  partners  or  agents  of  his,  go  for  nothing.  A 
man  cannot  make  evidence  for  himself,  his  declarations  arc  not  evi- 
dence that  he  was  owner,  and  of  course  not  evidence  that  he  was 
owner  with  others,  or  that  these  others  had  any  right. 

The  fourth  bill  of  exceptions.  The  declarations  of  William  Fell 
were  evidence  that  his  son  G.  W.  Fell  began  to  improve  under  him. 
The  effect  of  that  improvement  I  shall  notice  hereafter. 

The  fifth  bill  is  similar  to  the  fourth,  and  subject  to  the  same  re- 
marks. 

The  sixth  bill  of  exceptions,  is  to  a  matter  in  which  the  court 
committed  no  error  in  rejecting  the  evidence  ;  but  in  which  there 
was  manifest  error  in  the  charge  of  the  court,  or  rather  of  the  associ- 
ate judges,  for  the  president  did  not  concur. 

In  Pennsylvania  an  ejectment  may  be  sustained  by  the  cestui 
que  trust,  in  his  own  name  or  in  the  name  of  his  trustee,  or  the 
trustee  may,  and  often  does  bring  ejectment  in  pursuance  of  his  duty 
to  the  real  and  beneficial  owner.  The  person  whose  name  is  used 
by  another,  who  takes  out  and  pays  for  a  warrant,  is  usually  called  a 
trustee  for  that  other.  This  is  often  very  incorrect,  for  the  person 
whose  name  is  used,  has  not  a  spark  of  interest  either  legal  or  equita- 
ble ;  although  at  the  trial  no  one  knows  whether  there  was  in 
existence  any  such  person  as  Josiah  Galbreath,  yet  I  know  such  a 
person  well.  If  he  never  took  out  this  warrant  nor  paid  a  cent  for 
it  in  any  way,  he  had  not  enough  of  interest  to  prevent  an  escheat 
if  the  owner  died  without  heirs,  and  if  he  should  bring  an  ejectment 
for  these  tracts  as  his  own  right,  and  at  the  trial  it  was  proved  that 
he  did  not  apply  for  or  pay  for  this  tract  of  land,  he  could  not  re- 
cover against  any  person  in  possession,  unless  it  was  proved  who 
applied  and  paid  for  it,  and  that  the  suit  was  for  that  person.  If,  as 
was  the  case  here,  Josiah  Galbreath  did  not  bring  this  suit,  it  must 
be  shown  at  the  trial  who  did  bring  it,  and  that  it  was  brought  by 
the  person  and  for  the  person  really  the  owner  of  that  warrant.  If 
any  other  than  the  real  owner  can  sue  in  this  name  and  recover, 
then  every  other  person  in  the  state  may  sue  and  recover,  and  that 
without  showing  any  title.  Now,  our  titles  and  proceedings  in 
courts  have  been  much  censured,  but  are  not  so  bad  as  that  a  man 
who  has  laboured  on  and  improved  land  for  twenty  years  and 


Sept.  1832.]  OF  PENNSYLVANIA.  107 

[Campbell  v.  Galbreath.] 

eleven  months,  can  be  evicted  by  any  and  every  man  in  the  state. 
It  was  thus  a  great  error  in  the  associate  judges  to  say,  that  although 
it  was  not  known  for  whose  use,  or  at  whose  instance  this  suit  was 
brought,  and  though  it  was  admitted  by  the  plaintiff's  counsel  it 
was  not  brought  by  or  by  the  direction  of  Josiah  Galbreath,  yet  there 
might  and  ought  to  be  a  recovery  of  the  whole  tract  for  whom  it 
might  concern. 

We  had  a  case  in  this  court,  some  years  ago.  Grey  for  the  use  of 

v.   Holdship.     The  cause  was  tried   without  the  counsel 

stating,  and  the  court  refused  to  compel  them  to  state,  for  whose  use 
it  was  brought,  and  by  this  means  all  the  persons  who  would  have 
pocketed  the  money  were  examined  as  witnesses,  without  objection, 
at  the  time  they  were  offered.  So  in  this  case  it  seems  the  heir  of 
Walker  was  examined.  I  do  not  know  how  counsel  who  respect 
themselves,  can  offer  to  try  a  cause  in  this  way,  and  no  court  ought 
ever  to  suffer  a  recovery  in  such  case.  I  mean  where  it  is  conceded 
the  plaintiff  on  record  has  no  interest,  and  where  it  is  not  known  for 
whom  the  suit  is  brought. 

The  next  portion  of  the  charge,  viz.  as  to  the  evidence  of  owner- 
ship, I  have  remarked  on  already. 

The  next  part  of  the  charge  is,  that  a  man  who  has  obtained  a  war- 
rant and  survey  in  that  district  of  country,  although  he  has  never 
been  on  the  land  until  1798,  more  than  two  years  after  the  peace, 
has  still  a  right  to  the  land.  That  if  on  going  to  the  land  in  1798,  he 
finds  a  settler  on,  who  claims  by  actual  settlement,  and  without  a 
vacating  warrant,  the  fact  of  such  settler  being  on  the  land  is  itself 
a  prevention,  and  excuses  the  owner  of  the  warrant  from  settling 
according  to  the  law;  and  that — although  such  actual  settler  procured 
a  vacating  warrant  the  9th  of  January  1805,  and  a  survey  in  March 
following,  and  a  patent  in  1806,  accompanied  with  proof  of  con- 
tinued actual  residence  from  1798  till  the  trial ;  and  that  such  settler 
had  no  right  to  enter  without  a  vacating  warrant ;  and  he  must 
give  way  to  the  owner  of  the  warrant.  The  supreme  court  of  this 
state  in  The  Commonwealth  v.  Coxe,  4  Doll.  170,  decided,  that  a  patent 
obtained  by  a  warrantee  who  had  not  made  the  settlement  re- 
quired by  the  act,  gave  no  title,  imless  accompanied  by  proof  of 
the  actual  settlement;  and  again  in  The  •Attorney -General  v.  The 
Grantees,  &c.,  4  Doll.  237,  decided,  that  no  title  vested  in  the  grantee 
of  a  warrant,  unless  he,  within  two  years  of  the  peace,  complied  with 
the  terms  of  the  law,  and  continued  his  actual  residence  five  years. 
No  d-ecision  contrary  to  these  was  ever  made  by  the  supreme  court 
of  this  state.  The  grantee  of  a  warrant  had  a  right  to  enter  for  the 
space  of  two  years,  to  make  his  actual  settlement  according  to  law  ; 
if  he  did  not  enter  for  that  purpose  within  two  years  of  the  peace, 
and  was  not  prevented  during  those  two  years,  his  right  of  entry  was 
gone,  and  no  title  vested  in  him.  How  a  man  can  support  an 
ejectment  for  a  tract  of  land,  who  has  no  title  to  it  vested  in  him, 
and  no  right  of  entry,  I  cannot  conceive.  To  him  it  matters  not  how 


108  SUPREME  COURT  [Pittsburgh, 

[Campbell  v.  Galbrcath.] 

the  person  in  possession  came  there  ;  whether  the  state  can  turn  him 
out  of  possession  or  not,  is  of  no  consequence  ;  he  is  safe  against  one 
who  has  neither  title  to  the  land,  nor  right  of  entry  into  it;  this  is 
settled,  if  any  matter  of  the  law  of  ejectment  be  settled. 

The  associate  judges  are  mistaken  in  another  matter.  There  has 
been  no  decision,  that  settling  on  land,  for  which -a  warrant  has  been 
granted,  after  two  years  from  peace,  nor  that  a  settler  resisting, 
after  two  years  from  peace  a  warrantee  who  had  not  improved  within 
the  two  years,  excuses  the  warrantee  from  complying  with  the  terms 
of  the  law.  It  cannot  do  so.  It  is  absurd  to  say,  an  act  done  in 
1798  shall  excuse  a  man  for  not  settling  on  land  in  1796  or  1797. 

Even  in  Jones  v.  Anderson,  4  Yeates  569,  which  in  more  than  one 
respect  goes  beyond  the  law,  the  decision  is  put  expressly  on  the 
ground,  that  the  supposed  prevention  occurred  within  the  two  years. 
"The  warrantee,"  says  that  case,  "was  entitled  to  a  period  of  two  years 
after  the  ratification  of  the  treaty  at  fort  Grenville,  22d  December 
1795,  wherein  he  might  make  his  settlement.  But  instead  of  allow- 
ing this  full  interval  of  two  years,  the  unlawful  entry  was  made 
upon  the  land  within  the  period  of  seven  months,  by  those  under 
whom  the  defendant  claims  :  viz.,  in  May  1796."  And  to  remove 
all  doubts  on  this  subject,  Judge  Yeates  himself  says,  in  Young  v. 
Beatty,  that  in  all  the  cases  where  this  point  had  been  decided,  the 
entry  by  the  settler  was  within  the  two  years. 

Before  I  speak  of  the  vacating  warrant,  I  must  notice  the  remain- 
ing part  of  this  charge.  The  judges  say,  "  the  vacating  warrant 
dated  in  1805,  was  obtained  on  the  representation,  that  the  warantee 
had  failed  to  comply  with  the  law;  but  that  failure  having  been  oc- 
casioned by  the  defendant,  or  the  man  under  whom  he  claims, 
amounts  to  such  a  misrepresentation  as  will  make  the  vacating  war- 
rant void.  For  had  the  state  of  the  facts  been  known  to  the  officers 
of  the  land  office,  they  would  not  have  issued  the  vacating  warrant." 
And  again,  "and  this  being  the  decision  of  this  court,  founded  on 
former  decisions  of  the  supreme  court,  which  have  now  become  the 
law  of  the  land,  it  leaves  nothing  for  the  jury  to  decide  on  this  point, 
but  to  give  a  verdict  for  the  plaintiff,  if  satisfied  of  the  ownership  of 
Lodge  in  the  warrant  of  Galbreath." 

It  is  here  that  one  of  the  Fells,  and  four  of  the  family  were  ex- 
amined for  the  plaintiff,  says,  that  in  August  1799  Hamilton  and 
G.  W.  Fell  met  off  the  land,  and  Hamilton  told  Fell  if  he  caught  him 
on  the  land  he  would  whip  his  guts  out.  This  witness  fixes  the 
time  with  great  positiveness.  Now  the  four  first  witnesses  of  the 
plaintiff  prove  positively  that  almost  all  the  work  done  on  this  tract 
by  G.  W.  Fell  was  after  August  1799,  in  the  fall  of  that  year;  two 
of  them  mention  October,  and  more  than  one  of  them  swears  that 
G.  W.  Fell  worked  some  time  there,  and  planted  potatoes  in  the 
spring  of  1800.  Hamilton  continued  there  until  the  winter  of  1799 
and  1800,  and  sold  to  Campbell  who  moved  on,  and  no  threats  by 
him  are  intimated,  though  it  was  after  he  came  that  G.  W.  Fell 


Sept.  1832.]  OF  PENNSYLVANIA.  109 

[Campbell  v.  Galbreath.] 

ceased  to  do  any  thing  there.  Now  this  might  have  induced  the 
court  to  leave  as  facts  to  be  decided  by  the  jury,  whether  any  threats 
were  ever  used,  and  whether  a  man  who  was  not  deterred  from 
working  by  the  threats,  as  long  as  he  who  threatened  remained  in 
the  country,  was  frightened  away  by  those  threats  after  he  knew 
Hamilton  had  left  the  country;  and  it  is  quite  possible  if  so  left  by 
the  court,  the  jury  would  have  found  one  or  both  of  them  in  favour 
of  the  defendant,  and  that  the  officers  of  the  land  office  would  have 
issued  the  vacating  warrant  if  they  had  known  every  fact  as  proved 
at  this  trial.  But  if  this  threat  was  made,  and  if  G.  W.  Fell  in  conse- 
quence of  it  had  never  again  gone  upon  the  land,  it  would  not,  under 
the  facts  in  this  case,  have  made  the  plaintiff's  case  any  better.  All 
right  under  the  warrant  had  ceased — even  the  right  to  enter  could, 
in  G.  W.  Fell,  be  only  that  right  which  every  person  had  to  enter 
and  settle  on  vacant  land.  Even  if  he  had  begun  first  to  improve 
and  was  driven  off,  he  could  not  lie  by  for  ever,  see  Campbell  pur- 
chase and  pay,  and  build  a  house  and  barn,  and  clear  a  farm,  and 
take  a  warrant,  get  a  survey  and  patent ;  and  give  no  notice  for  half 
a  lifetime.  In  the  case  of  Cosby  v.  Brown,  2  Sinn.  1 24,  Brown  had 
built  a  house,  cleared  and  fenced  land,  and  sown  it  with  grain  in 
1797,  and  went  away  in  the  winter,  returned  in  the  spring  and  found 
Cosby  in  his  house,  and  was  driven  away  by  threats;  he  said  he 
would  resort  to  the  law,  but  went  away  and  stayed  till  1805,  when 
he  brought  ejectment,  and  his  delay  postponed  him  by  the  unanimous 
decision  of  the  supreme  court.  This  decision  was  in  1809. 

I  had  omitted  Patterson  v.  Cochran,  1  Binn.  231,  in  the  supreme 
court,  where  the  right  of  the  warrantee  to  recover  in  ejectment 
where  he  had  not  made  any  settlement,  is  expressly  put  on  the 
ground  of  actual  prevention,  by  a  person  who  had  settled  within  two 
years  after  the  peace. 

I  am  of  opinion  there  are  many  errors  for  which  this  judgment 
should  be  reversed  and  a  venire  de  novo  awarded.  , 

Judgment  reversed,  and  a  venire  facias  de  novo  awarded. 


110  SUPREME  COURT  [Pittsburgh, 


Rush  against  Barr. 

Whenever  the  legal  title  to  land  is  in  one  person,  and  the  real  interest  in  another, 
they  form  but  one  title,  and  the  statute  of  limitation  does  not  run  between  the 
holders  of  such  title,  until  the  trustee  disclaims  and  acts  adversely  to  the  ccslui  que 
trust f  tind  s  u-.li  disclaimer  must  be  made  known. 

Fraud  prevents  the  operation  of  the  statute  of  limitation,  and  it  does  not  commence 
to  run  until  the  discovery  ot  the  fraud. 

ERROR  to  the  common  pleas  of  Armstrong  county. 

This  was  an  action  of  ejectment  by  William  Rush  who  survived 
Victor  Dupont,  assignee  of  Archibald  M' Call  against  Margaret  Barr, 
for  a  tract  of  land  ;  and  the  question  of  law  which  was  presented, 
arose  out  of  the  following  evidence. 

The  plaintiff,  to  support  the  issue  on  his  part,  produced  as  a  wit- 
ness Hugh  Wason,  who  being  duly  sworn  testified  as  follows,  to  wit, 
"  in  the  last  of  October  or  1st  of  November  in  the  year  1795,  William 
Wason  and  myself  came  out  and  cut  logs  for  a  cabin  ;  we  hauled  the 
timber  early  in  the  spring  of  1796;  there  was  a  company  of  men 
came  out  past  our  improvement ;  Judge  Barr  and  Thomas  Barr 
were  along,  they  built  a  cabin,  and  we  discharged  them,  and  told 
them  Silly  Wason  claimed  on  his  improvement.  They  were  a 
stronger  party  than  us,  and  they  were  not  willing  to  quit.  My  brother 
William  Wason,  went  to  the  settlement  and  brought  out  his  family, 
and  left  me  to  keep  the  house :  we  were  out  several  weeks  before 
the  Barrs  came  out,  and  when  we  discharged  them  the  logs  were 
cut  and 'the  foundations  laid:  there  were  logs  enough  to  build  a 
cabin  ;  there  was  a  shed  built  when  we  first  went  out,  which  was 
not  in  the  lines  of  the  tract  in  dispute;  we  were  on  the  tract  when 
the  Barrs  came  out,  and  we  discharged  them  from  making  their 
improvement.  In  the  summer  of  1796,  William  Wason  cleared  from 
three-fourths  to  one  acre,  planted  it  in  potatoes;  he  staid  until 
harvest  and  then  went  into  the  settlement  to  take  up  our  harvest; 
he  came  out  with  Mr  JH'Call  in  August,  and  we  articled  with  him. 
In  the  fall  of  the  same  year  Thomas  Herron  came  out  and  purchased 
from  William  Wason;  during  this  time  the  Barrs  never  came  to  do 
any  thing  on  the  land  ;  we  had,  before  M'Call  came,  run  out  our 
lines  to  suit  ourselves,  without  reference  to  the  old  lines.  I  moved 
out  of  this  county  in  1797  ;  the  Barrs  never  until  then  done  any 
thing,  but  located  the  cabin.  The  logs  for  the  cabin  were  cut  prin- 
cipally on  the  tract  in  dispute ;  we  paid  no  attention  to  lines  ;  the 
others  we  cut  on  the  tract  where  Herron  now  lives.  Herron  moved 
his  family  on  the  tract ;  William  Wason  had  left  in  the  fall  of  1796. 
My  brother  William  Wason  articled  with  M'Call  for  two  tracts, 


Sept.  1832.]  OF  PENNSYLVANIA.  Ill 

[Rush  v.  Barr.] 

neither  of  them  is  this  one.     I  sold  to  Milligan.     This  tract  is  one 
and  Herron's  the  other." 

The  plaintiff  then,  further  in  support  of  the  issue  on  his  part,  offered 
in  evidence  a  warrant  of  acceptance  to  Archibald  JJ/' Call  the  as- 
signee of  the  plaintiff,  for  thirteen  tracts  of  land  on  the  west  side  of 
the  Alleghany  and  Ohio  rivers,  and  Conewango  creek,  of  which  the 
tract  in  dispute  is  one.  Which  testimony  so  offered,  the  defendant 
by  his  counsel  did  object  to,  and  the  court  having  sustained  said 
objection  rejected  the  testimony  so  offered  ;  to  which  the  plaintiff  ex- 
cepied. 

The  plaintiff  then  gave  the  following  evidence  by  John  Cowan. 
"  In  the  month  of  March  1796,  William  Wason,  with  his  wife  and 
family,  was  living  in  a  cabin  erected  on  the  land  in  dispute,  and  in 
the  same  spring  cleared  about  one  acre  of  the  land  and  put  it  in> 
corn.  Wason  remained  on  the  land  till  the  following  harvest,  and 
then  brought  out  his  father  and  mother,  and  put  them  into  the  cabin 
to  keep  the  possession.  When  winter  set  in,  they  all  returned  to  the 
settlement.  The  following  year,  perhapsr  William  Wason  sold  his 
right  to  Thomas  Herron,  who  in  the  same  year  moved  into  Wason's 
cabin.  Shortly  after  that,  Herron  told  me  that  he  had  sold  the  same 
land  to  his  brother-in-law  Witherson,  in  order  to  hold  it.  Herron  then 
moved  off  the  land,  and  gave  up  the  possession  to  a  son  of  Witherson's, 
who  continued  to  reside  there  on  the  land,  in  the  same  cabin,  till 
the  spring  of  1798,  when  Thomas  Barr  and  Robert  McDowell  went 
into  an  empty  cabin,  without  a  roof,  which  had  been  built  on  the 
same  land  and  was  known  by  the  name  of  Barr's  cabin.  The 
day  following  that  on  which  they  came,  I  was  at  their  cabin,  and 
either  Barr  or  M'Dowell,  in  the  presence  of  the  other,  told  me  that 
if  they  thought  the  father  of  Witherson  would  come  on,  they  would 
proceed  no  further  in  making  their  improvements;  but,  after  pausing 
a  little,  said  they  would  go  on  with  their  improvement  at  any  rate. 
They  covered  their  cabin  and  moved  into  it.  Both  Barr  and 
McDowell  told  me  they  had  bought  the  land  from  Herron  and  were 
to  pay  the  same  to  Herron  for  it  that  he  had  paid  to  Wason.  Her- 
ron told  me  the  same  thing.  Witherson  left  the  land  when  his  uncle 
sold  it." 

The  plaintiff  then  offered  a  bond  from  William  Wason  to  Archi- 
bald  M'Call,  dated  the  llth  of  August  1796,  conditioned  for  the 
settlement  of  the  land  in  dispute  ;  which,  being  objected  to  by  the 
counsel  for  the  defendant,  the  court  overruled  the  objection,  and 
admitted  the  evidence. 

The  plaintiff  then  further  gave  in  evidence,  an  agreement  between 
William  Wason  and  Thomas  Herron,  dated  the  llth  day  of  August 
1796. 

An  agreement  between  Thomas  Herron  of  the  one  part,  and  Ro- 
bert M'Dowell  and  Thomas  Barr,  of  the  other  part,  dated  the  26th 
of  May  1798. 

The  plaintiff  then  called  as  a  witness  Benjamin  Leisure,  who  testi- 


112  SUPREME  COURT  [Pittsburgh, 

[Rush  v.  Barr.] 

fied  as  follows,  viz.  "I  was  present  at  the  execution  of  an  agreement 
between  Thomas  Barr  and  Robert  McDowell,  at  the  end  of  which, 
they  entered  into  the  before  mentioned  agreement ;  by  which,  as  I 
understood  from  all  the  parties,  that  Barr  and  WDowell  were  to 
keep  Herron  clear  of  J/'Ca//,  and  that  they  were  to  continue  the 
the  settlement  Herron  had  bound  himself  to  maintain.  I  first  knew 
of  Barr  and  McDowell's  improvements,  in  1797.  I  came  out  in 
1796  ;  the  cabin  was  fourteen  or  eighteen  feet  square.  The  pro- 
missory note,  dated  26th  May  1798,  was  given  by  Thomas  Barr 
and  Robert  JW'Dowell  to  Thomas  Herron,  at  the  time  of  making  the 
agreement,  as  a  payment  of  the  purchase  money  of  the  land  in 
dispute ;  and  at  the  time  the  note  was  given,  1  signed  my  name 
thereto,  as  a  witness ;  but  I  do  not  recollect  whether  the  note  was 
for  part  or  in  full  of  the  purchase  money." 

The  plaintiff  then  gave  in  evidence  by  George  Ross,  Esq.  as  fol- 
lows :  "  I  went  to  make  a  survey  for  John  Titus,  I  think  it  was  in 
1803,  1804  or  1805.  Titus  wanted  me  to  run  in  on  the  land  in  dis- 
pute, to  fill  his  survey,  as  he  was  the  oldest  settler.  I  went  to  run 
in  the  same  land,  but  was  discharged  by  Thomas  Barr  and  Robert 
M'Dowell,  who  told  me  they  claimed  the  land  under  Archibald 
M'Call  through  William  Wason  and  Thomas  Herron.  I  then  re- 
fused to  go  on  the  land  in  dispute." 

It  was  (hen  admitted  that  the  title  of  Archibald  M'Call  was  in  the 
plaintiff. 

The  plaintiff  then  gave  in  evidence  the  testimony  of  John  Titus, 
as  follows  :  "  I  came  to  the  country  in  March  1796,  and  saw  a  cabin 
erected  on  the  land  in  dispute,  in  which  William  Wason  was  then 
living,  with  his  family.  In  the  same  year,  Archibald  M'Call,  and 
myself,  went  to  the  cabin  ;  M'Call  and  Wason  then  entered  into 
an  article  for  the  land  ;  shortly  after  that,  Thomas  Herron  called  on 
me  to  witness  that  he  had  sold  the  land  to  a  boy  named  William 
Witherson,  who  was  present  at  the  time,  and  that  he  had  given  up 
his  right  to  the  boy.  Some  time  afterwards,  perhaps  a  year,  while 
Judge  Ross  and  McDowell  were  surveying  a  tract  of  land  belonging 
to  me,  Robert  JM'Dowell  told  me,  in  the  presence  of  the  judge,  that 
he  held  the  land  under  William  Wason's  claim  and  Archibald  M' Call, 
and  ordered  them  not  to  run  into  it.  I  asked  McDowell  if  he  held 
under  his  own  settlement,  and  if  he  did,  I  would  run  into  the  land  ; 
he  said  that  he  did  not  hold  the  land  under  his  own  settlement,  but 
under  that  of  William  Wason" 

The  defendant,  on  his  part,  to  sustain  his  issue,  gave  in  evidence 
as  follows: 

John  M  'Dowell,  sworn,  saith,  "  twelve  of  us  came  out  in  March 
1796,  and  had  built  two  or  three  cabins  before  we  went  to  build 
Thomas  Barr's.  On  Monday  we  went  to  build  his.  I  saw  Wason's 
improvement,  it  was  burnt  on  Sunday,  the  day  before  Barr's  cabin 
was  raised.  We  saw  on  that  day  William  Wason,  Hugh  Wason  and 


Sept.  1832.  J  OF  PENNSYLVANIA.  113 

[Rush  v.  Barr.] 

others;  Wason  told  me  we  were  improving  on  his  tract;  he  said  there 
was  about  two  hundred  acres  in  each  tract.  We  built  the  cabin, 
roofed  it,  and  cut  out  a  place  for  the  door ;  we  commenced  deadening, 
I  think  it  extended  to  half  an  acre;  there  was  nothing  done  by  Tho- 
mas Barr  or  McDowell  in  1797  ;  the  day  after  we  built  Burr's  cabin 
we  built  mine  ;  we  came  back  in  two  or  three  days;  William  Wason 
then  had  a  cabin  on  the  land.  In  February  1798  they  came  out,  and 
in  May  they  had  about  eight  acres  cleared.  My  brother  lived  on  it 
till  his  death.  I  don't  recollect  what  was  done  with  the  eight  acres, 
there  was  corn  raised  on  it  that  summer,  about  four  acres.  Robert 
McDowell's  improvement,  when  he  died,  was  30  acres.  I  think  he 
died  before  the  war.  Thomas  Barr  and  his  wife  lived  with  Robert 
McDowell,  who  left  his  property  to  his  brothers'  and  sisters'  chil- 
dren, mine  and  Thomas  Barr's.  I  have  worked  some  on  the  place, 
and  am  working  some  now.  I  don't  recollect  when  Mrs  Barr  died. 
I  don't  know  if  I  raised  grain  every  year,  I  have  four  or  five  years. 
I  heard  Barr  say  he  would  watch  until  they  got  out  of  possession, 
and  he  would  take  it.  Witherson  cleared  about  four  acres.  Wason 
had  cleared  three  or  four  acres.  Thomas  Barr  cleared  the  side  join- 
ing me  ;  he  claimed  one  half  the  tract.  I  am  on  one  of  the  tracts 
claimed  by  J\f'Call.  I  know  the  lines  around  the  tract,  I  carried 
the  chain  myself.  Robert  M'Dowell  died  in  the  fall  of  1800." 

James  McDowell  testified  that  Thomas  Barr  lived  on  the  land 
about  three  years  after  Robert  M'Dowell  died  ;  he  was  not  living  on 
it  when  it  was  sold  by  the  sheriff,  he  had  left  it  two  or  three  years 
before  the  sale  ;  it  is  three  years  since  Margaret  Barr  came  on  it ; 
grain  was  raised  all  except  one  or  two  years  ;  there  was  grain  raised 
two  or  three  years.  Barr  left  it  about  Christmas  or  new  year's  ;  I 
don't  know  if  he  put  in  a  crop  or  not. 

The  defendant  then  gave  in  evidence  a  patent  to  Robert  M'Dow- 
ett  for  429  acres  and  38  perches,  on  warrant  dated  in  1803  ;  also, 
record  of  judgment  of  June  term  1797,  an  ejectment  at  the  suit  of 
Archibald  M'Call  v.  Thomas  Barr,  for  400  acres  of  land  in  Buffalo 
township ;  also  transcript  of  a  judgment,  William  Wylie  v.  Thomas 
Barr,  fi.  fa.  June  term  1819,  on  which  the  right  of  Thomas  Barr  to 
his  interest  in  the  tract  of  land  in  dispute,  is  levied  on  ;  vcnditioni 
exponas  to  September  term  1819  returned — Sold  to  James  Monteeth  for 
380  dollars.  A  deed  from  Philip  Mechling,  Esq.  sheriff,  to  James 
•Monteeth  for  the  right,  title  and  interest  of  Thomas  Barr  in  the  land 
in  dispute,  dated  22d  September  1819. 

John  Cowan,  having  been  sworn,  said,  "  I  cannot  recollect  how  long 
it  was  that  no  person  resided  on  the  land  in  dispute,  there  was  one 
year  it  was  not  occupied.  We  had  it  for  pasture;  the  fields  lay  open 
and  the  neighbours'  cattle  run  into  it." 

The  court  below  thus  charged  the  jury  : 

The  plaintiff  claims  the  tract  of  land  in  dispute  by  virtue  of  an 
alleged  improvement  and  settlement  thereon,  commencing  in  the 
fall  of  1795  by  the  entry  thereon  by  William  Wason  for  the  purpose 
p 


114  SUPREME  COURT  [Pittsburgh, 

[Rush  v.  Barr.] 

of  acquiring  the  title  under  the  act  of  assembly  of  1792.  It  appears 
a  number  of  logs  for  a  cabin  were  then  cut  down  by  him,  and  that 
he  returned  early  in  the  spring  of  1796,  had  a  cabin  put  up,  in  which 
himself  with  his  wife  and  children  resided  until  harvest  time,  and 
in  the  intermediate  time  cleared  and  planted  about  three  quarters  of 
an  acre  of  potatoes.  It  appears  that  he  then  moved  into  what  was 
then  called  a  settlement,  as  it  may  be  inferred,  to  reap  his  fall  grain 
there;  and  afterwards  returned  to  the  tract  in  dispute,  where,  it  ap- 
pears, he  was  on  the  llth  of  August  1796,  the  date  of  a  contract 
between  him  and  Archibald  M'Call.  By  this  the  settler  recognized 
a  right  in  A.  M'Call  to  the  land  under  a  survey  which  had  been 
made  by  the  surveyor's  deputy,  and  an  acceptance  thereof  by  the 
surveyor-general,  and  agreed  to  purchase  125  acres  of  the  tract  for 
the  sum  of  one  penny,  and  the  further  consideration  of  complying 
with  the  condition  of  settlement,  improvement  and  residence  required 
by  the  act  of  assembly,  so  that  a  patent  can  be  obtained  for  the 
whole  tract,  the  purchase  of  which  had  been  paid  by  A.  M'Call. 
It  further  appears  that  William  Wason  agreed  to  sell  his  interest  in 
the  tract  and  another  adjoining  it,  the  whole  containing  250  acres, 
under  his  contract  with  A.  M'Call,  which  Thomas  Herron  bound 
himself  to  fulfil,  and  upon  which,  within  six  months  after,  Wason 
was  to  make  a  sufficient  title  to  him.  Some  time  after  this  it  would 
appear  the  parties  went  back  to  the  settlement.  Herron,  it  appears, 
returned  to  the  tract  the  following  spring  and  cleared  about  two  or 
three  acres,  planted  them  with  corn,  and  in  the  fall  sowed  them  with 
wheat.  How  long  he  resided  on  the  tract  afterwards  does  not  dis- 
tinctly appear,  but  sometime  after  put  the  son  of  one  Witherson  in 
possession,  who  cleared  three  or  four  acres  more  and  resided  on  the 
tract  in  the  spring  of  1798.  Some  of  the  witnesses  believed  seven  or 
eight  acres  in  all  had  been  then  cleared.  This,  considering  the 
general  situation  of  that  quarter  of  the  country,  then,  was  a  substan- 
tial improvement,  entitled  to  respect  and  consideration. 

On  the  part  of  the  defendant  a  claim  is  set  up  to  the  land  under 
an  improvement,  commencing  in  the  spring  of  1796,  by  the  raising 
of  a  cabin  by  Thomas  Barr  and  Robert  McDowell.  It  does  not  appear 
they  did  any  other  work  until  the  spring  of  1798  ;  they  seem  to  be 
fully  conusant  of  the  improvement  of  Wason,  Herron  and  Witherson, 
and  of  the  contract  with  Archibald  M'Call.  They  afterwards 
claimed  according  to  the  lines  of  the  survey  which  had  been  impro- 
perly made  for  him.  They  would  not  permit  them  to  be  infringed 
on  by  any  of  the  neighbouring  settlers.  It  was,  therefore,  probably 
an  object  to  acquire  whatever  Archibald  M'Call  had,  and,  which 
was  certainly  of  much  greater  consequence,  the  right  of  Herron, 
under  his  own  and  Wasorfs  improvement.  This  seems  to  have 
been  brought  about  with  considerable  address.  They  take  no  as- 
signment from  Herron  of  his  contract  with  Wason,  which  recog- 
nises that  which  had  been  entered  into  with  Archibald  M'Call. 
They  execute  a  loose  note,  promising  to  maintain  a  settlement  when 


Sept.  1832.]  OF  PENNSYLVANIA.  115 

[Rush  v.  Barr.] 

they  had  begun  there,  unless  prevented  by  law.  They  do  not  ac- 
knowledge any  right  in  Herron.  What  suit  could  be  maintained  by 
Herron  on  such  a  vague  instrument,  I  am  at  a  loss  to  conceive.  It 
is  very  possible  that  they  then  claimed  adversely  to  Herron  and 
Wason's  improvement ;  and  if  they  could  persuade  Wason  to  give 
up  to  them,  they  proposed  claiming  under  what  they  called  their 
improvement  in  the  spring  of  1796,  by  raising  a  cabin,  the  first  that 
had  been  raised  on  the  land  in  question. 

They  have  taken  possession  of  the  whole,  and  carried  on  their 
improvements  without  interruption,  or  even  notice  by  or  on  part  of 
Archibald  M'Call,  from  1798  until  June  1817,  a  period  of  nineteen 
years.  I  feel  much  disposed,  however,  to  get  over  this  strong  pre- 
sumption of  abandonment,  but  on  further  consideration  I  am  of 
opinion  it  cannot  be  got  over.  It  is  strengthened  by  the  trial, 
brought  in  1817,  resulting  in  a  verdict  and  judgment  for  Thomas 
Barr.  The  present  suit  is  delayed  until  March  of  the  last  year, 
which  is  another  instance  of  great  neglect.  Independent  of  these 
objections  to  the  plaintiff's  right  of  action,  I  am  of  opinion  that  the 
act  of  limitation  applies  to  this  case,  and  operates  as  a  bar  to  the 
plaintiff's  recovery. 

Errors  assigned. 

1.  The  court  erred  in  rejecting  the  warrant  of  acceptance  to  Archi- 
bald M' Call,  the  assignee  of  the  plaintiff  for  thirteen  tracts  of  land, 
of  which  that  in  dispute  is  one. 

2.  The  court  erred  in  charging  the  jury  that  there  was  a  strong 
presumption  of  abandonment  by  the  plaintiff. 

3.  The  court  erred  in  charging  the  jury  that  there  the  act  of  limi- 
tations operated  as  a  bar  to  the  plaintiff's  recovery. 

White,  for  plaintiff  in  error,  cited,  3  Yeates  289  ;  6  Johns.  34 ; 
14  Johns.  224;  16  Serg.  fy  Rawle  281;  10  Serg.  fy  Rawle  194; 
1 1  Serg.  fy  Rawle  340. 

W.  W.  Fetterman,  for  defendant  in  error,  cited,  1  Penns.  Rep.  74, 
451. 

The  opinion  of  the  Court  was  delivered  by 

HUSTON,  J. — This  case  differs  in  its  features  from  any  heretofore 
brought  from  that  portion  of  this  state,  which  unfortunately  has 
been  so  productive  of  lawsuits,  and  the  settlement  of  which  has  been 
so  retarded  by  contests  as  to  settlers. 

Among  the  evils  which  have  arisen  from  those  contests,  one,  and 
not  the  least,  is  the  destruction  or  perversion  of  moral  principle,  which 
is  too  often  disclosed.  Those  who  have  a  sense  of  the  obligations  of 
law  and  of  religion,  who  would  shudder  at  being  told  they  were 
acting  without  regard  to  their  duty  to  their  neighbour,  and  in  oppo- 
sition to  the  commands  of  their  God  :  men,  who,  in  every  part  of  their 
intercourse  with  society,  endeavour  to  act  with  scrupulous  honesty, 


116  SUPREME  COURT  [Pittsburgh, 

[Rush  v.  Barr.] 

toooften  seem  to  think  the  ties  which  bind  them  in  all  other  cases,  have 
no  obligatory  force  in  their  transactions  with  respect  to  the  titles  to  the 
land  on  which  they  live.  Different  opinions  and  different  decisionsby 
our  supreme  court  and  the  supreme  court  of  the  United  States,  for  a 
long  time,  made  it  doubtful  what,  under  certain  circumstances,  was 
or  was  not  a  good  title  ;  every  individual  next  formed  his  own  opin- 
ion, and  with  many  men,  all  this  resulted  in  a  total  disregard  to  any 
and  every  contract  made  respecting  the  land.  I  hope  the  time  is 
not  far  distant  when  the  titles  will  be  settled,  and  the  plain  rules  of 
law  and  of  moral  justice,  will  again  be  acknowledged  in  words  and 
in  practice. 

The  same  evil,  and  something  worse,  has  occurred  in  other  places, 
and  has  disappeared ;  has  given  way  to  reflection  and  a  sense  of  duty 
and  right. 

Before  I  come  to  the  contracts  of  the  parties,  I  will  notice  the  sit- 
uation of  the  plaintiff  and  his  claim,  and  of  the  defendant,  at  the 
time  of  the  contract  by  the  plaintiff  and  the  defendant.  I  mean 
those  under  whom  the  plaintiff  and  defendant  claim. 

At  the  date  of  the  act  of  3d  April  1792,  all  agreed  as  to  its  con- 
struction ;  and  this  is  abundant  evidence  that  those  who  took  war- 
rants were  as  strongly  impressed  with  the  necessity  of  making  the 
settlement,  as  those  who  claimed  only  by  actual  settlement.  The 
continuance  of  Indian  hostilities,  and  the  impossibility  of  procuring 
forty  thousand  actual  settlers  to  go  into  a  wilderness  within  two 
years,  set  ingenuity  at  work  to  evade  the  law.  And  among  the 
strange  effects  of  this,  was  the  arrangement  by  the  officers  of  the 
land  office,  by  which  they  undertook  to  dispense. with  the  provisions 
of  the  law,  and  to  grant  patents  on  what  were  called  prevention  cer- 
tificates ;  but  until  the  decision  of  the  supreme  court  in  The  Com- 
monwealth v.  Coxe,  many  supposed  these  titles  good. 

Not  to  be  behind  the  warrantees  in  attempts  to  evade  the  law,  the 
settlers,  as  soon  as  a  few  logs  were  cut,  or  a  few  trees  deadened, 
claimed  to  have  as  much  right  as  if  a  house  had  been  built,  and  a 
family  was  residing  in  it.  And  as  many  of  these  went  to  that  coun- 
try with  the  intention  of  making  a  bonafide  settlement  according  to 
the  law,  and  were  discouraged  by  the  difficulty  of  procuring  provisions 
in  a  wilderness,  where  all  wanted  to  buy  food,  and  nobody  had  any 
to  sell,  it  soon  happened  that  many  wanted  to  sell  their  improve- 
ments. Another  class,  each  of  whom  had  commenced  more  than 
one  settlement,  wished  to  sell  all,  or  all  but  one.  Purchasers  were 
found  ;  for  we  have  seen  times  when  every  body  would  buy  land, 
and  times  when  nobody  would  buy  land,  at  least,  not  at  a  fair  price. 

The  plaintiff  seems  to  have  purchased  a  dozen  of  these  improve- 
ments ;  and  as  each  is  from  a  different  person,  we  may  take  it,  from 
men  who  began  bonafide  to  settle  one  tract,  but  had  become  discour- 
aged. '  Although  the  deputy  surveyor  ought  not  to  have  made  a 
survey  for  any  one  who  had  no  warrant  until  he  had  made  an  actual 
settlement,  that  is,  until,  at  least,  a  person  was  residing  thereon  as  a 


Sept.  1832.]  OF  PENNSYLVANIA.  117 

[Rush  v.  Barr.J 

home,  yet  surveys  were  made  as  soon  as  a  few  days'  work  had  been 
done,  and  for  men  whose  residence  and  family  were  many  miles  dis- 
tant ;  and  on  these  deadenings,  not  actual  settlements  and  surveys, 
the  officers  of  the  land  office  received  the  purchase  money,  and  war- 
rants of  acceptance  issued,  and  perhaps,  in  some  cases,  patents. 
And  on  the  principle  of  prevention  patents  to  warrantees,  this  was 
right;  an  actual  settler  might  be  prevented  from  completing  what 
he  had  begun,  as  well  as  a  warrantee.  The  warrants  of  acceptance, 
which  were  one  step  towards  a  patent,  could  be  no  better  than  a 
patent ;  that  is,  they  were  in  'themselves,  and  unsupported  by  any 
thing  else,  of  no  avail,  and  no  suit  would  be  supported  on  them  ;  but 
did  not  preclude  the  owner  from  showing  that  he  had  actually  made 
the  settlement  according  to  law.  The  one  in  question,  was  obtained 
on  the  7th  of  August  1795.  The  settlement  of  J.  Clark,  which  it 
recites,  had  then  begun,  during  the  Indian  hostilities  ;  and  Clark,  or 
whoever  came  under  him,  would  have  had  two  years  from  Wayne's 
treaty,  within  which  to  make  it  his  actual  residence,  and  clear,  and 
fence,  and  cultivate  it,  according  to  law  ;  for  in  this  country,  as  well 
as  other  parts  of  the  state,  he  who  had  begun  bona  fide,  was  not  re- 
quired to  stay  the  day  and  night,  until  his  family  was  brought  on  ; 
if  he  persevered  in  his  improvement  with  due  and  reasonable  dili- 
gence, he  was  protected.  JV/'Ca/Z  then  came  to  this  country  in  1796, 
or  before  :  he  was  on  this  land  in  1796,  claiming  it  on  Clark's  im- 
provement, and  he  found  Wason  there,  who  also  had  commenced 
an  improvement,  but  after  M' Call's  warrant  of  acceptance,  and  not 
within  the  lines  of  this  tract.  An  agreement  is  made  between 
JWCall  and  Wason,  which  recites,  that  Clark  had  made  improve- 
ment on  this  tract,  and  a  survey  had  been  made  by  the  deputy  sur- 
veyor, and  the  purchase  money  paid  by  *M'Call,  and  a  warrant  of 
acceptance  to  him  ;  but  that  "  no  patent  could  issue,  until  the  con- 
ditions of  settlement,  residence  and  improvement,  directed  and 
imposed  on  the  lands,  by  act  of  3d  April  1792,  shall  have  been 
completely  performed  and  fulfilled  ;"  and  then  goes  on  to  state, 
"that  *M'Call  had  that  day  sold  one  hundred  and  twenty-five  acres 
of  the  land,  &c.,  being  part  of  said  survey  to  William  Wason,  who 
agrees  and  binds  himself  to  perform  and  fulfil  the  settlement,  resi- 
dence and  improvement  required  by  the  said  act,  so  that  a  patent 
may  issue  for  the  whole  tract.  And  then  Wason  binds  and  obli- 
gates himself  to  do  all  required  by  the  act  of  assembly,  in  the  very 
words  of  the  act. 

Now,  let  us  pause  and  review  this  transaction.  Jfef'CaZZ  did  not 
come  to  Wason  and  tell  him,  I  have  a  good  and  complete  title,  and 
thus  induce  him  to  contract ;  he  tells  him  exactly  the'  truth,  for  I 
take  it,  that  the  recital,  that  Clark  had  commenced  an  improvement, 
is  to  be  taken  as  strictly  true  between  those  parties  at  this  time. 
What  both  parties  state  in  argument  to  be  the  state  of  facts,  is  as 
much  the  statement  of  one  as  the  other.  Whether  the  work  on  the 
ground  showed  that  somebody  had  been  there  before  Wason,  we 


118  SUPREME  COURT  [Pittsburgh, 

[Rush  v.  Barr.] 

do  not  know,  but  Wason  might  know  by  inspection  ;  and  as  he  re- 
sisted the  Barrs,  would  have  resisted  M'Call.  But  further,  if  no 
work  had  been  done  by  Clark,  the  survey  by  the  deputy  surveyor, 
Gapin,  for  Clark,  is,  after  thirty  years,  evidence  of  at  least  work 
done  by  Clark.  All  the  rest  of  the  statement  of  what  M'Call  had 
done,  is  proved  by  exhibits  in  the  cause.  The  copy  of  the  warrant 
of  acceptance  offered  in  evidence,  was  certified  from  the  surveyor- 
general's  office  in  May  1796,  and  was  probably  then  exhibited. 

From  1795  until  1796,  there  was  no  conclusive  proof  of  abandon- 
ment by  Clark.  JH'Call  might  then  goon  and  complete  the  settle- 
ment, and  had  until  the  22d  of  December.  1797,  in  which  to  do  it. 
It  is  distinctly  understood  and  stated,  that  the  title  was  inceptive, 
and  would  not  be  good  unless  followed  up  according' to  the  direc- 
tions of  the  act ;  and  in  consideration  of  one  hundred  and  twenty- 
five  acres,  Wason  agrees  to  do  all  the  act  requires,  so  that  a  patent 
may  issue  for  the  whole  survey.  It  has  been  followed  up,  and  the 
actual  settlement  made  and  continued  five  years,  and  a  patent  could 
have  been  got  on  that  settlement,  and  on  the  money  paid  byM'Call; 
for  although  the  warrant  of  acceptance  is,  I  think,  informal,  yet  as 
he  had  paid  the  purchase  money  for  this  tract,  and  had  procured  the 
actual  settlement  to  be  made  within  the  time,  a  patent  would  have 
regularly  issued  for  the  use  of  M'Call  and  Wason,  as  their  vendees, 
on  that  payment  of  money,  though  informally  paid. 

I  repeat,  that  if  M'Call  had  undertaken  to  sell  a  good  title,  or  that 
he  himself  would  procure  a  good  title,  when  in  fact  he  had  no  title, 
and  could  not  procure  one  without  an  actual  settlement,  the  law 
might  on  these  facts  have  been,  that  the  settlement  made  by  Wason 
would  have  enured  to  his  own  use,  and  not  for  his  own  and  J&'CalVs; 
but  the  bargain  was  very  different,  and  was  a  lawful  one,  and  ought 
to  bind  both  parties. 

If  M' Call  had  not  settled  or  procured  some  one  to  settle  according 
to  law,  his  warrant  of  acceptance  and  his  money  paid,  would  not  have 
availed  him  ;  but  he  did,  or  procured  another  to  do  all  the  law  re- 
quired, within  the  time  required,  and  the  question,  shall  that  other 
take  all,  or  shall  he  be  bound  by  his  bargain,  and  take  one  hundred 
and  twenty-five  acres,  leaving  the  residue  for  JWCall. 

On  the  17th  of  August  1796,  only  a  few  days  after  his  agreement 
with  M'Call,  Wason  conveyed  to  Herron,  who  bound  himself  to 
complete  the  settlement  agreeably  to  Wasorfs  contract  with  M'Call. 
There  is  something  in  this  not  explained  on  our  paper  book,  it  is  a 
contract  to  sell  two  hundred  and  fifty  acres,  which  he,  Wason,  had 
bought  from  M'Call ;  the  case  furnishes  no  evidence  of  his  right  to 
that  quantity  ;  but  probably  there  was  some  written  or  parol  agree- 
ment which  we  have  not.  Herron  moved  his  family  on  next  year, 
we  find  his  nephew  Witherson  on,  and  three  or  four  acres  cleared 
and  cultivated.  In  1798,  Thomas  Barr  and  Robert  M'Dowell  came 
there — they  had  begun  a  cabin  in  1796,  and  been  absent  two  years. 
They  bought  from  Herron,  moved  on  and  continued  ;  and  here  we 


Sept.  1832.]  OF  PENNSYLVANIA.  119 

[Rush  v.  Barr.] 

meet  with  what  induced  the  reflections  with  which  I  commenced. 
It  is  in  full  proof  by  parol,  that  they  bought  from  //erron,  and  were 
to  give  him  the  same  piece  Herron  gave  Wason,  and  that  they  gave 
a  note  for  the  balance  of  the  purchase  money.  When  another  per- 
son wanted  to  take  part  of  the  land,  they  kept  him  off  by  JV/' Call's 
title,  and  JVason  and  Herron's  improvement,  which  they  said  they 
had  purchased ;  but  the  only  written  evidence  of  title  was  in  these 
words,  signed  by  J\f'Dowell  and  Barr  :  "  be  it  remembered  that  we, 
Robert  M'Dowell  and  Thomas  Barr,  do  promise  and  covenant  with 
Thomas  Herron,  to  maintain  a  settlement  according  to  law,  where 
they  began  their  settlement  and  now  lives,  unless  prevented  by  law. 
Witness  our  hands  and  seals,  26th  May  1798." 

The  last  witness  to  this  paper  proved  that  he  was  present  at  the 
bargain,  from  begining  to  end — at  the  conclusion  of  which  they 
entered  into  the  above  agreement.  That  he  understood  from  the 
declarations  and  conversation  of  all  parties,  that  Barr  and  *M'Dowell 
were  to  keep  Herron  clear  of  M'Call,  and  were  to  continue  the  set- 
tlement Herron  had  bound  himself  to  maintain. 

Now,  from  the  words  of  the  above  agreement,  it  would  seem,  it 
was  their  own  settlement,  commenced  in  1796,  which  they  bound 
themselves  to  continue. 

These  persons,  in  1803,  took  a  warrant  in  the  name  of  Robert 
M'Dowell  and  a  patent.  Robert  McDowell  died  in  1810,  and  left  his 
half  to  Barr's  children,  and  some  other  nephews  of  his. 

The  possession  was  continued  regularly  until  M'DowelTs  death, 
and  Barr  continued  on  for  about  three  or  four  years  after.  Barr  be- 
came indebted,  and  in  1819,  all  the  right  of  Thomas  Barr  to  his 
interest  in  the  tract  of  land,  was  levied  on,  and  sold  to  Monteeth. 
Barr  did  not  live  on  it  then — he' is  since  dead.  When  the  defend- 
ant, his  widow,  went  on  it,  it  does  not  appear.  This  suit  was 
brought  to  March  term  1828. 

It  also  was  shown  that  an  ejectment  was  brought  in  1817,  by  A. 
M'Call  against  Thomas  Barr,  which  resulted  in  judgment  for  the  de- 
fendant. 

The  errors  assigned  are  : 

1.  The  court  erred  in  rejecting  the  warrant  of  acceptance  which 
was  offered  in  evidence.  At  first,  I  thought  the  court  right  in  tins- 
particular,  but  a  minute  examination  of  the  dates  and  of  the  several 
agreements,  satisfies  me  that  it  ought  to  have  been  admitted.  It 
would  not  have  been  evidence  as  a  ground  of  title  between  parties 
who  never  had  privity  with  each  other,  not  against  an  actual  settler 
who,  after  the  22d  of  December  1797,  entered  on  the  land  as  vacantr 
and  adverse  to  the  warrant,  unless  along  with  it  the  defendant  had 
shown  some  actual  settlement  connected  with  it ;  but  it  was  evi- 
dence to  shew  that  the  statement  of  M'Call  in  his  agreement  with 
Wason  was  true,  and  if  the  defendant  had  acted  fairly,  it,  or  the 
payment  of  the  purchase  money  on  it,  connected  with  the  actual 
settlement  of  the  defendant  would  have  availed  to  procure  a  good  title. 


120  SUPREME  COURT  [Pittsburgh, 

[Rush  v.  Barr.] 

The  judge  was  struck,  as  I  have  been,  by  the  appearance  of  ini- 
quity in  the  attempt  of  the  defendants  to  get  clear  of  their  contract, 
only  he  calls  it  by  the  softer  name  of  management.  If  the  jury 
should  find  that  the  parol  evidence  is  true  as  to  Barr  and  JW'Dowell 
purchasing  from  Herron,  and  that  their  agreement  was  put  in  its 
present  form  with  an  unfair  design,  the  plaintiff  would  be  entitled  to 
recover  an  undivided  part  of  the  tract,  containing  in  all  above  one 
hundred  and  twenty-five  acres — I  say,  would  be,  unless  the  statute 
of  limitations  bars  him.  As  to  abandonment,  1  see  no  evidence  of 
it;  the  land  was  in  possession  of  the  part  owner  under  a  written 
agreement.  It  does  not  appear  that  any  proof  of  the  settlement 
having  been  completed  was  offered  to  M'Call,  or  any  call  on  him  to 
take  out  a  patent;  by  the  agreement  the  possession  was  to  remain 
with  Wason  or  those  claiming  under  him.  The  fact  that  Barr  and 
McDowell  claimed  adversely  was  not  of  record  in  the  county;  in  fact 
if  Mr  Ross  believed  they  did  not  so  claim  in  1803  or  1804,  the 
warrant  in  1803  to  M'Dowell  was  an  act  inconsistent  with  the  agree- 
ment with  t/lf'Ca//,  but  if  that  warrant  called  for  a  settlement  made 
by  M'Dowell,  the  reading  of  it  would  give  no  notice  that  it  was  for  a 
tract  settled  first  by  Clark  and  then  Wason.  The  statute  of  limita- 
tions is  a  most  useful  one,  and  ought  not  lightly  to  be  frittered  away; 
but  there  are  cases  to  which  it  does  not  apply.  Whenever  the  legal 
title  is  in  one,  and  the  real  interest  in  another,  these  form  but  one 
title,  and  the  statute  does  not  run  between  them  until  the  trustee 
disclaims  and  acts  adversely  to  the  cestui  que  trust:  so  of  landlord  and 
tenant;  the  possession  of  the  tenant  is  that  of  the  landlord,  who 
reposes  safely  on  the  effect  of  his  lease  until  the  tenant  refuses  to 
pay  rent,  disclaims  the  right  of  his  landlord,  and  openly  sets  him  at 
defiance.  And  so  in  all  cases  where  two  persons  have  each  an  inte- 
rest in  a  tract  of  land,  of  such  kind  that  both  their  interests  form  but 
one  title,  and  by  their  agreement  one  is  to  possess  for  his  own  use 
and  the  use  of  the  other.  In  such  cases  the  statute  does  not  run 
until  he  in  possession  disclaims  the  right  and  interest  of  the  other — 
denies  his  right  and  refuses  possession,  and  such  disclaimer  and  denial 
must  be  such  that  the  other  has  notice  of  it.  It  is  not  sufficient  that 
it  is  denied  secretly,  or  an  agreement  inconsistent  with  it  is  made 
and  concealed.  Fraud  prevents  the  statute  from  running;  it  is  well 
settled  that  the  statute  does  not  run  until  the  discovery  of  the  fraud. 
After  the  discovery  of  the  facts  imputed  as  fraud,  it  does  run. 
Kane  v.  Bloodgood,  7  Johns.  Chan.  90,  122,  and  cases  there  cited. 

By  the  agreement  between  M'Call  and  Wason,  the  possession  of 
Wason  was  to  be  the  possession  of  M'Call.  The  latter  could  then 
repose  in  safety.  The  possession  was  to  continue  so  till  a  certain 
time  after,  when  a  patent  was  to  be  obtained,  and  there  was  no  exact 
agreement  when  it  was  to  be  divided.  Wason  conveyed  to  Herron 
in  good  faith,  and  the  latter  covenanted  to  fulfil  the  agreement  with 
M'Call.  Whether  Perron  joined  in  the  plan  to  defraud  M'Call  of 
his  interest,  does  not  appear,  but  the  defendant,  if  the  witnesses  be 


Sept.  1832.]  OF  PENNSYLVANIA.  121 

[Rush  v.  Barr.] 

believed,  had  full  notice  of  M'CalFs  interest,  and  defended  under  it 
once  when  it  suited  them;  at  the  same  time,  by  agreeing  to  protect 
Herron  against  M'Call,  it  would  seem  a  deliberate  plan  was  formed, 
which  was  any  thing  but  honest.  If  the  jury,  for  it  must  be  left  to 
them,  believe  there  was  an  intention  unfairly  to  drop  the  contract 
with  JH'Call,  and  set  up  and  hold  under  the  merely  colourable  com- 
mencement made  by  the  Barrs  in  1796,  and  which  had  been  aban- 
doned two  years,  their  conduct  was  fraudulent  as  to  J\l'Call;  they 
were,  in  honesty,  in  conscience  and  in  law,  as  much  bound  to  give 
him  his  share  of  the  land  as  Wason  or  Herron  was,  and  the  statute 
of  limitations  does  not  begin  to  protect  them  until  M'Call  knew  of 
this  conduct  and  intention  of  theirs.  The  jury  will  ascertain  when 
M'Call  had  knowledge  of  this  unfair  conduct,  and  if  this  suit  was 
not  commenced  until  twenty-one  years  after  he  had  knowledge  of 
these  facts,  then  the  statute  of  limitations  bars  the  plaintiff;  if 
twenty-one  years  had  not  expired  from  the  time  he  had  notice  of 
such  fraudulent  and  adverse  act,  it  does  not  bar  the  plaintiff.  The 
effect  of  fraud  on  the  running  of  the  statute  of  limitations  did  not 
occur  to  the  court  of  common  pleas  in  the  hurry  of  the  trial. 
Judgment  reversed,  and  a  venire  facias  de  novo  awaf  ded. 


Riddle  against  Albert. 

Under  the  act  of  the  3d  of  April  1792,  taken  in  connexion  with  the  acts  of  22d  of 
April  1794, 22d  of  September  1794, 2d  of  April  1802,and  3d  of  April  1804,  if  an  original 
warrantee  has  neglected  to  commence  the  settlement,  improvement  and  residence 
mentioned  in  the  first  of  these  acts,  for  the  space  of  two  years  from  the  date  of  his 
warrant,  it  is  lawful  for  any  one  to  enter  and  take  possession  of  the  land  as  a  settler, 
for  the  condition  broken  on  the  part  of  the  warrantee,  without  having  first  procured 
a  vacating  warrant. 

Actual  improvement  and  settlement  are  essential  to  the  right  of  any  one  to  have  a 
vacating  warrant. 

Upon  such  improvement  and  actual  settlement  having  been  made,  the  actual  settler 
may  defend  himself  against  the  original  warrantee,  or  recover  in  ejectment  against 
him. 

ERROR  to  the  common  pleas  of  Butler  county. 

This  was  an  action  of  ejectment  for  a  tract  of  land,  in  which 
Mam  Albert  was  plaintiff,  and  James  Riddle  was  defendant. 

The  plaintiff  below  claimed  under  a  warrant,  dated  the  1st  of 
March  1794,  in  the  name  of  Robert  Elder,  which  was  said  not  to  be 
the  description  of  the  land  in  dispute,  but  a  survey  was  made  by  the 
deputy  surveyor  of  the  district,  embracing  the  land  in  dispute,  on 
the  28th  of  May  1795.  This  survey  was  never  entered  in  a  book 
kept  by  the  deputy  surveyor,  but  was  returned  into  the  surveyor- 
general's  office  before  the  year  1804,  though  the  time  was  not  shown. 


122  SUPREME  COURT 

[Riddle  v.  Albert.] 

Evidence  was  given  also,  on  the  part  of  the  plaintiff  below,  on  the 
trial,  showing  that  all  right  or  title  which  existed  under  this  warrant 
and  survey,  to  the  land  in  dispute,  was- then  vested  in  him. 

The  defendant  below  claimed  the  land  under  an  improvement, 
commenced  in  the  winter  of  1798  or  1799,  by  John  Brown,  by  his 
building  a  cabin  upon  it.  He,  in  the  spring  of  1799,  relinquished  it 
in  favour  ofJindrew  Gillilard,  who  moved  upon  the  land  at  that  time, 
with  his  family,  making  it  the  place  of  their  abode  and  residence, 
and,  at  the  same  time,  clearing,  fencing,  cultivating  and  raising 
grain  thereon,  and  continuing  to  do  so  every  year,  until  1809,  when 
he  had  about  twenty  acres  cleared  and  fenced,  upon  which  he  had 
raised  grain.  At  this  time  he  sold  about  one  hundred  acres  of  the 
land  to  George  Shannon ;  and  continued  to  occupy  the  residue  of  it 
by  tenants,  to  whom  he  leased  it  from  time  to  time,  by  their  resi- 
ding upon  it,  and  cultivating  and  raising  grain  upon  it  every  suc- 
ceeding year,  with  the  exception  of  one  year  (about  which  the 
testimony  of  the  respective  parties  was  somewhat  conflicting  and 
contradictory),  until  the  bringing  of  this  action,  which  was  in  1823. 
Shannon  sold  this  one  hundred  acres  to  the  plaintiff  below,  who 
afterwards  bought  the  warrant  of  1794. 

•Andrew  Gillilard,  after  having  gotten  a  certificate  from  the  deputy 
surveyor  of  the  district  in  which  the  land  lay  that  it  was  not  appro- 
priated under  any  warrant  issued  from  the  land  office;  obtained  a 
warrant  for  it,  on  the  25th  of  March  1818  ;  and  on  the  18th  of  May 
following,  a  patent  for  it  was  granted  to  him.  The  defendant  below, 
James  Riddle,  was  the  tenant  of  Andrew  Gillilard,  in  the  possession 
of  the  land  at  the  time  this  action  was  commenced. 

It  was  testified  by  some  of  the  witnesses,  and  perhaps  contradicted 
by  none,  that  Mary  O'Hara,  who  was  living  upon  the  land  as  a 
tenant  under  Andrew  Gillilard,  left  it  some  time  in  the  spring  of  1818, 
and  that  the  house  remained  unoccupied  during  the  summer  of  that 
year  ;  but  some  of  the  witnesses  on  the  part  of  the  defendant  below 
testified,  that  the  land  was  cropped  by  Riddle,  as  the  tenant  of  Gil- 
lilard, and  that  he  raised  a  crop  of  buckwheat  upon  it ;  while  some 
of  the  witnesses  on  the  part  of  the  plaintiff  below  said,  they  had 
been  on  the  land  during  that  summer  and  fall  following,  passing 
through  it  occasionally,  and  occasionally  passing  by  in  sight  of  it, 
and  could  not  recollect  that  they  saw  any  grain,  buckwheat  or  any 
other,  raised  on  it  that  year — rather  thought  there  was  none.  This 
was  the  only  year  in  which  it  was  denied  that  the  land  was  not 
occupied  and  grain  raised  upon  it  by  either  Gillilard  or  his  tenants. 
There  was  also  some  evidence  given  on  the  part  of  the  plaintiff  below, 
that  he  had,  in  the  course  of  this  year,  entered  upon  the  land,  thrown 
down  the  back  wall  in  a  cabin  and  erected  a  chimney  in  it,  that  stood 
upon  the  land,  and  that  he,  at  the  time  of  doing  so,  said  that  he 
came  in  under  his  claim  under  the  warrant  of  1794,  that  he  intended 
to  rent  the  land,  and  after  fastening  up  the  door  left  it  again. 

This  statement  contains,  substantially,  all  the  facts  disclosed  and 


Sept.  1832.]  OF  PENNSYLVANIA.  123 

[Riddle  v.  Albert.] 

evidence  given  upon  the  trial  of  the  cause,  which  are  in  any  way 
material  to  the  final  determination  of  the  real  matter  in  controversy 
between  the  parties. 

The  following  errors  were  assigned. 

1.  That  the  court  erred  :  in  admitting  in  evidence  the  certificate 
of  the  land  office. 

2.  In  admitting  in  evidence  the  record  of  the  judgment  and  sub- 
sequent proceedings  in  the  case  of  Pigon  v.  Jldlum,  Nichols  et  al. 

3.  That  the  court  erred  :  in  charging  the  jury,  that  it  is  unneces- 
sary for  a  warrantee  to  show  that  he  made  such  settlement,  im- 
provement and  residence  as  is  required  by  the  act  of  1792,  and 
within  the  specified  time  ;  provided  a  person  has  settled  without  a 
vacating  warrant,  and  made  such  settlement  and  improvement ; 
because  such  settlement  and  improvement  enure  to  the  warrantee  ; 
and  that  a  trespasser  cannot  take  advantage  of  any  forfeiture  of  the 
warrantee,  under  the  act  of  1792. 

4.  In  charging  the  jury,  that  the  act  of  the  14th  of  March  1816 
is  unconstitutional,  and  void. 

5.  In  charging  the  jury,  that  the  purchase  of  the  one  hundred 
acres  will  not  bar  the  recovery  of  the  remainder  of  the  tract. 

6.  In  charging  the  jury,  that  an  actual  settler  cannot  recover 
without  a  vacating  warrant. 

7.  In  charging  the  jury,  with  regard  to  what  constitutes  such  an 
entry  as  defeats  the  operation  of  the  act  of  limitation,  and  in  relation 
to  the  entry  of  Jldam  Albert. 

8.  [Omitted,  as  not  decided  upon.] 

W.  W.  Fetterman,  for  plaintiff  in  error,  cited,  Skeen  v.  Pearce, 
7  Serg.  4"  Rawle  303  ;  Hazard  v.  Lowry,  1  Binn.  166  ;  Patterson  v. 
Cochran,  1  Binn.  231  ;  Wright  v.  M'Kechan,  3  Yeates  280;  Dawson 
v.  Digby,  5  Binn.  204  ;  Wright  v.  Small,  4  Yeates  562  ;  Young  v. 
Beatty,  1  Serg.  fy  Rawle  74. 

Evans  and  Jlyres,  for  defendant  in  error,  cited,  2  Yeates  450 ; 
Young  v.  Beatty,  1  Serg.  fy  R^wle  74 ;  Bedford  v.  Shelby,  4  Serg. 
fy  Rawle  401  ;  10  Serg.  fy  Rawle  97. 

Wilkins,  in  reply,  for  plaintiff  in  error. 

• 

The  opinion  of  the  Court  was  delivered  by 

KENNEDY,  J. — Eight  errors  have  been  assigned  in  this  case.  The 
first  and  second,  which  are  founded  upon  bills  of  exception  taken  to 
the  opinion  of  the  court  below  in  regard  to  the  admission  of  evidence, 
were  very  properly  abandoned  by  the  counsel  for  the  plaintiff  in 
error.  The  remaining  six  are  to  the  charge  of  the  court  which  was 
delivered  to  the  jury. 

It  is  sufficient  to  say  that  there  is  no  error  in  that  part  of  the  charge 
which  is  made  the  ground  of  the  fifth  error. 

As  to  the  fourth,  seventh  and  eighth,  it  does  not  appear  to  me 


124  SUPREME  COURT  [Pittsburgh, 

[Riddle  v.  Albert] 

that  they  are  necessarily  involved  in  the  cause,  and  certainly  not 
necessary  to  be  decided  on,  in  order  to  make  a  final  end  of  the  dis- 
pute in  this  cause ;  and  unless  it  were  necessary  for  this  purpose, 
the  press  of  business  upon  this  court  will  not  admit  of  bestowing  that 
consideration  upon  the  questions  growing  out  of  them,  that  might  be 
requisite  to  solve  them  correctly.  I  shall,  therefore,  pass  them  by 
without  intimating  any  opinion  in  respect  to  them. 

The  land  in  dispute  is  a  part  of  the  land  lying  north  and  west  of 
the  rivers  Ohio  and  Alleghany,  and  Conewango  creek,  for  the  grant- 
ing of  which  the  act  of  the  3d  of  April  1792  was  passed  by  the  legis-   ' 
lature  of  this  state. 

The  third  and  sixth  errors  turn  upon  the  same  principle,  and  will 
be  disposed  of  together.  In  them  the  plaintiff  in  error  complains 
that  the  court  below  erred  in  charging  the  jury,  among  other  things, 
that  a  warrantee  under  the  act  of  the  3d  of  April  1792,  without 
showing  that  he  had  ever  made  or  caused  to  be  made  a  settlement, 
improvement  and  residence  upon  the  land,  or  ever  having  attempted 
it  within  the  time  allowed  by  law  to  him  for  that  purpose,  had  a 
right  to  recover  the  possession  of  the  land  from  an  actual  settler, 
where  he  settled  upon  and  took  his  possession  of  the  land  without 
obtaining  a  vacating  warrant;  that  the  commonwealth  alone  could 
raise  this  objection,  and  take  advantage  of  the  condition  broken,  by 
not  making  the  settlement  within  due  time,  which  was  to  be  done 
by  granting  a  vacating  warrant;  that  the  settler,  not  having  obtained 
a  vacating  warrant  from  the  commonwealth,  was  to  be  considered 
a  mere  trespasser,  and  his  settlement,  improvement  and  residence  as 
enuring  to  the  use  and  benefit  of  the  warrantee  ;  and  that  such  set- 
tler, being  a  trespasser,  can  not  take  advantage  of  his  wrong,  nor 
can  a  settler  recover  or  defend  as  against  the  warrantee,  without 
producing  a  vacating  warrant. 

The  same  question  which  is  here  presented  by  this  part  of  the 
charge  of  the  court  to  the  jury,  has  been  determined  and  settled 
during  this  term  in  Campbell  v.  Galbreath,  which  was  brought  here 
by  writ  of  error  to  the  judges  of  the  court  of  common  pleas  of  Mercer 
county.  This  court  has  there  decided  that  under  the  act  of  the  3d 
of  April  1792,  taken  in  connection  with  the  acts  of  the  22d  of  April 
1794,  22d  of  September  of  the  same  year,  2d  of  April  1802,  and  3d 
of  April  1804,  if  the  original  warrantee  has  neglected  to  commence 
or  cause  to  be. commenced,  the  settlement,  improvement  and  resi- 
dence mentioned  in  the  first  of  these  acts  for  the  space  of  two  years 
from  the  date  of  his  warrant,  unless  in  case  of  his  death,  when  the 
settlement  or  further  prosecution  of  it  seems  to  be  dispensed  with  by 
the  terms  of  this  act,  or  has  been  prevented  by  force  of  arms  of  the 
enemies  of  the  United  States,  but  shall  have  failed  within  two  years 
next  after  the  cause  of  such  prevention  ceased  to  exist  to  commence 
or  resume  his  settlement,  improvement  and  residence  upon  the  land, 
according  to  the  requisitions  of  the  same  act,  that  it  is  perfectly  law- 
ful for  any  person  to  enter  upon  and  take  possession  of  the  land  as  a 
settler,  for  the  condition  broken  on  the  part  of  the  warrantee  in  not 


Sept.  1832.]  OF  PENNSYLVANIA.  125 

[Riddle  v.  Albert.] 

having  commenced  and  persisted  in  his  settlement  until  it  was  com- 
pleted. And  so  far  from  a  vacating  warrant  being  necessary  in 
order  to  justify  any  one  in  taking  possession  of  the  land  for  the  pur- 
pose of  settling  upon  and  improving  it  according  to  the  directions  of 
the  act  of  1792,  where  the  original  warrantee  has  failed  to  do  it  or 
to  have  it  done  within  the  time  required,  that  the  person 'wishing  to 
take  advantage  of  the  forfeiture,  must  first  enter  upon  the  land  and 
make  the  settlement,  before  he  can  apply  and  obtain  a  vacating 
warrant.  The  acts  of  assembly  referred  to  have  expressly  forbidden 
the  issuing  of  a  vacating  warrant  to  any  one,  unless  he  has  previously 
made  an  improvement  and  become  an  actual  settler  upon  the  land; 
and  therefore,  by  irresistible  inference,  have  made  the  entry  of  any 
one  for  such  purpose  altogether  lawful,  and  put  it  in  his  power  to 
take  advantage  of  the  condition  broken  ;  so  that  instead  of  the  com- 
monwealth being  the  first  to  act  and  move  in  the  matter,  as  has 
been  said  and  even  decided  heretofore,  it  belongs  to  the  citizens 
individually  to  do  so,  by  entering  upon  and  settling  the  land. 
It  also  follows  of  course,  that  if  the  entry  of  such  settler  previously, 
be  not  only  lawful,  but  indispensably  necessary,  in  order  to  obtain  a 
vacating  warrant,  that  all  claim  and  title  to  the  land  by  the  original 
warrantee  must  cease,  and  be  entirely  defeated  immediately  upon  the 
settler's  taking  possession  of  the  land  and  making  his  settlement. 
The  settler  thereby  acquires  a  pre-emption  right  to  the  land,  which 
will  enable  him  not  only  to  defend  his  possession  of  it  against  the 
original  warrantee  or  any  other,  but  to  recover  it  by  action  if  expelled 
by  him.  It  is  unnecessary  to  go  into  a  minute  investigation  of  this 
matter,  and  to  refer  to  the  various  clauses  and  provisions  contained 
in  the  several  acts  of  assembly  referred  to  on  this  subject,  in  order  to 
sustain  the  propositions  which  I  have  advanced,  for  that  is  done 
pretty  much  at  large,  in  Campbell  v.  Galbreath,  which  will  appear 
in  print  at  the  same  time  with  this  case. 

The  original  warrant,  which  was  granted  to  Jlndrew  Gillilard  in 
March  1818,  though  not  in  the  form  of  a  vacating  warrant,  may  be 
considered  sufficient,  under  the  circumstances  of  this  case,  to  supply 
the  place  of  one.  Gillilard  had  done  all  that  was  required  towards 
settling,  improving  and  residing  on  the  land,  nay,  much  more  than 
is  required  either  by  the  act  of  the  3d  of  April  1792,  or  by  all  the 
acts  together.  He  paid  the  purchase  with  interest,  from  the  date  of 
his  first  settlement  on  the  land,  to  the  state.  In  short,  he  has  done 
every  thing  towards  paying  the  purchase  money  with  interest,  and 
performing  all  other  terms  and  conditions  required  by  law,  to  entitle 
him  to  a  vacating  warrant  and  patent  for  the  land.  Even  the  fees 
have  been  paid  by  him.  Beside  it  is  not  his  fault,  if  there  be  any 
in  it,  that  he  did  not  obtain  a  vacating  warrant  instead  of  an  original 
warrant.  He  did  all  that  was  required  by  the  act  of  the  3d  of 
April,  to  inform  himself  whether  the  land  had  been  appropriated 
by  a  survey  under  an  original  warrant  or  not ;  but  no  survey  was 
entered  in  the  deputy  surveyor's  office,  nor  book  kept  for  that  pur- 
pose in  it,  as  required  by  the  act.  He  then  obtained  a  certificate  in 


126  SUPREME  COURT  [Pittsburgh, 

[Riddle  v.  Albert] 

due  form,  from  the  deputy  surveyor  of  the  proper  district,  that  the 
land  never  had  been  appropriated  by  warrant  or  survey  under  a 
warrant,  and,  of  course,  this  appearing  to  be  the  case,  it  was  im- 
possible for  him  to  obtain  at  the  land  office  any  other  form  of  war- 
rant than  the  one  he  did.  It  cannot  be  that  Gillilard  can  be  preju- 
diced by  the  neglect  of  the  agent  of  the  commonwealth,  in  not  keep- 
ing a  book  and  entering  in  it  all  the  surveys  made,  when  no  possible 
injury  has  been  done  by  it  to  the  warrantee.  I  am  of  opinion  that 
GtililarcTs  title  to  the  land  is  as  perfect  and  absolute  as  if  he  had 
obtained  his  patent  upon  a  vacating  warrant  and  survey. 

Before  closing,  it  is  due,  however,  to  the  learned  judge  of  the 
court  below,  who  delivered  the  charge  to  the  jury,  that  although 
there  was  error  in  that  part  of  it  which  has  been  noticed  under  the 
third  and  sixth  errors,  yet  he  is  not  properly  the  author  of  it ;  that 
it  was  produced  by  his  sense  of  judicial  obligation,  which  bound 
him  to  regard  the  decision  of  this  court  given  in  the  case  of  Skeen  v. 
Pearce,  7  Serg.  fy  Rawle  303,  as  the  law  of  the  state,  contrary  to 
what  seems  to  have  been  his  own  opinion  upon  the  question.  As  it 
was  the  court  of  dernier  resort  that  fell  first  into  this,  he  left  it  very 
properly  for  the  same  to  correct,  which  I  now  consider  as  done. 

The  judgment  in  this  case  is  reversed  and  a  venire  facias  de  novo 
awarded. 


Beltzhoover  against  The  Commonwealth. " 

In  an  action  of  debt  against  two  or  more,  a  confession  of  judgment  by  one  defend- 
ant, accepted  by  the  plaintiff,  operates  as  a  release  of  all  the  other  defendants,  against 
whom  no  judgment  can  afterwards  be  obtained  in  that  action  or  any  other  upon  the 
same  evidence  of  debt :  and  whether  that  evidence  of  debt  be  a  joint,  or  a  joint  and 
several  obligation  does  not  alter  the  rule. 

In  a  joint  action  against  two  or  more,  a  rule  of  reference  cannot  be  taken  as  to  one 
of  the  defendants,  nor  any  less  number  than  the  whole,  and  must  be  served  on  all. 

ALLEGHANY  county. 

This  was  an  action  by  the  Commonwealth  at  the  instance  of  Heze- 
kiah  JYt/es  against  Lazarus  Stewart,  late  sheriff,  Alexander  Httd,  John 
Turner  and  Henry  Beltzhoover,  upon  the  official  bond  of  Stewart.  The 
writ  was  served  on  all  the  defendants,  and  all  appeared  by  counsel. 
Lazarus  Stewart,  one  of  the  defendants,  confessed  a  judgment  on  the 
docket  for  117  dollars  and  59  cents  in  the  presence  of  the  plaintiff's 
attorney  ;  after  which  the  plaintiff  entered  a  rule  to  refer  the  cause 
to  arbitrators,  who  subsequently  made  a  report,  finding  for  the  plain- 
tiff, against  Henry  Betzhoover,  one  of  the  defendants,  117  dollars 
and  49  cents ;  upon  which  judgment  was  entered,  and  to  reverse 
which,  this  writ  of  error  was  sued  out. 


Sept.  1832.]  OF  PENNSYLVANIA.  127 

[Beltzhoover  v.  The  Commonwealth.] 

W.  W.  Fetterman,  for  plaintiff  in  error,  cited,  Marshall  v.  Lowe,  6 
Serg.  4-  Rawle  281  ;  Garber  v.  Fisher,  5  Serg.  fy  Rawk  179  ;  Tat/- 
lor  v.  Fitzsimmons,  17  Serg-.  <$•  Rawle  453  ;  Pedan  v.  Cox,  3  Serg.  4» 
245  ;  Srmtfi  v.  Black,  9  Serg.  4-  Rawle  142. 


Selden,  for  the  defendant  in  error. 

The  opinion  of  the  Court  was  delivered  by 

KENNEDY,  J.  —  I  consider  the  case  of  Williams  et  al.  v.  M'Fall  and 
others,  2  Serg.  <$»  Rawk  280,  as  ruling  this  case.  That  was  an  ac- 
tion of  assumpsit  against  two  upon  a  joint  contract,  in  which  one  of 
the  defendants  appeared  and  confessed  a  judgment  for  a  certain  sum 
of  money,  but-  the  other  pleaded  the  general  issue,  and  went  on  to 
trial.  A  verdict  was  found  against  him  for  a  smaller  sum,  and  it 
was  held  that  no  judgment  could  be  entered  on  the  verdict.  The 
claim  was  joint,  and  the  plaintiff,  having  taken  a  final  and  separate 
judgment  against  one  of  them,  thereby  severed  the  nature  of  the 
demand  and  released  the  other.  The  judgment  confessed  became 
his  only  security.  His  claim  originally  being  joint,  and  having 
commenced  a  joint  suit,  he  could  not  charge  them  severally  without 
their  consent.  The  judgment  in  an  action  founded  upon  a  contract 
must  follow  the  nature  of  the  claim  ;  it  must  be  joint  also.  The  cir- 
cumstance of  the  bond  upon  which  this  suit  is  founded  being  several 
as  well  as  joini;,  is  not  to  be  regarded,  and  does  not  vary  the  case  ; 
because,  although  it  be  so,  the  plaintiff  below  had  his  election  to 
have  sued  the  defendants  there  either  jointly  or  severally,  but 
having  made  his  election  to  sue  them  jointly,  he  is  bound  by  it, 
and  the  bond  must  be  considered  as  if  it  were  joint  merely  and  not 
several,  and  the  action,  as  if  it  had  been  brought  upon  a  joint  bond 
only;  and  the  defendants  are  entitled  to  all  the  chances  of  escape 
that  would  have  attended  a  proceeding  upon  a  mere  joint  oiiginai 
liability.  If  the  plaintiff  below  had  proceeded  in  his  suit  and  obtained 
a  joint  judgment  against  all  the  defendants,  a  nd  Henry  Beltzhoover  and 
the  other  sureties  had  died  before  execution  of  it,  without  leaving  any 
real  estate  bound  by  it  ;  and  Lazarus  Stewart,  the  principal  defend- 
ant, still  being  alive  :  the  judgment  would  have  survived  entirely 
against  him,  and  in  no  event  would  it  be  levied  out  of  the  estate  of 
the  deceased  defendants.  If,  however,  the  plaintiff  below  had  sued 
them  severally,  it  would  be  otherwise,  for  the  estate  of  each  and  all 
would  continue  to  be  liable  until  satisfied.  So  that  to  permit  the 
plaintiff  below,  after  having  brought  a  joint  suit,  to  proceed  in  it 
against  them  severally,  would  not  only  be  setting  aside  the  distinc- 
tion which  is  well  known  to  exist  in  law  between  a  joint  and  several 
suit,  but  it  would  be  suffering  him  to  change  the  nature  of  his  claim 
entirely,  into  a  several  from  a  joint  one,  for  which  he  commenced 
his  suit,  and  consequently  to  change  the  nature  of  the  liability  of  the 
defendants  in  the  suit,  without  their  consent.  By  taking  a  judg- 
ment against  L.  Stewart  alone,  the  plaintiff  below  has  precluded 
himself  for  ever  from  proceeding  again  upon  the  same  bond  for  the 


128  SUPREME  COURT  [Pittsburgh, 

[Oeltzhoover  v.  The  Commonwealth.] 

same  cause  of  action,  in  either  a  joint  or  several  action  against  Stew- 
art, and  demanding  or  obtaining  another  judgment.  His  right  of 
action  for  the  same  cause,  is  merged  in  the  judgment  already  con- 
fessed, and  has  put  an  end  to  the  action  as  regards  Stewart.  But 
having  commenced  his  action  jointly  against  Steicart  and  the  other 
defendants  below,  he  has  no  right  to  demand  a  judgment  against 
the  latter,  without  including  Stewart.  He  however  has  already  got 
one  against  Stewart,  and  therefore  cannot  have  another  for  the  same 
cause.  Hence  it  is  manifest  that  he  must  be  content  now  with  his 
judgment  which  he  has  against  Stewart  as  his  only  security,  and 
the  judgment  against  Henry  Beltzhoover  is  erroneous  for  the  reasons 
already  mentioned. 

It  is  also  bad  for  the  second  error  assigned  ;  for  it  was  not  compe- 
tent for  the  plaintiff  below  to  bring  a  joint  suit  against  the  four, 
and  after  the  writ  was  served  upon  them,  and  they  had  all  appeared 
by  attorney,  to  proceed  either  in  court  or  by  reference  under  the 
compulsory  arbitration  law  against  any  one,  or  less  number  than 
the  whole  of  the  defendants,  as  long  as  they  continued  all  in  being, 
so  as  to  obtain  a  final  judgment,  unless  one  or  more  of  them  should 
consent  to  give  such  judgment ;  which,  I  have  already  shown, 
would  be  good  against  those  who  gave  it,  but  would  also  have  the 
effect  of  releasing  or  discharging  the  others.  To  sanction  such  a 
course  of  proceeding,  except  against  those  who  have  assented  to  it, 
would,  in  effect,  be  to  permit  him  to  enter  a  nolle  prosequi  against 
such  as  he  did  not  choose  to  have  the  rule  for  arbitration  served  on, 
which  cannot  be  done  in  actions  founded  upon  contract,  unless 
where  one  or  more  of  the  defendants  admit  their  joint  liability  to 
have  existed,  but  claim  to  be  discharged  from  it  by  operation  of  law, 
and  plead  to  that  effect.  Besides,  it  has  been  well  settled  by  several 
decisions  of  this  court,  that  in  an  action  against  two  or  more,  the 
rule  of  reference,  if  entered  by  the  plaintiff,  must  be  sued  on  all  the 
defendants ;  and  that  the  plaintiff  cannot,  at  pleasure,  drop  one  or 
more  and  proceed  against  the  others.  See  Marshall  v.  Lowry, 
6  Serg.  fy  Rawle  281  ;  Pedan  v.  Cox,  3  Serg.  fy  Rawle  245  ;  Brentz 
v.  Bishop,  5  Serg.  fy  Rawle  179  ;  Rank  v.  Becker,  12  Serg.  fy 
Rawle  412. 

As  to  the  third  error  assigned,  it  is  sufficient  to  say  that  the  differ- 
ence in  the  amount  of  the  judgment  confessed  by  Stewart,  and  that 
obtained  by  arbitration  against  Beltzhoover,  is  not  considered  ma- 
terial. The  error  does  not  consist  in  that.  Had  the  arbitrators 
made  an  award  for  precisely  the  same  sum  of  money  with  the 
amount  of  the  judgment  confessed,  still  it  could  not  have  been  sup- 
ported, for  the  reasons  already  stated  in  discussing  the  first  error. 
The  plaintiff  below,  by  having  accepted  of  judgment  from  Stewart, 
one  of  the  defendants,  which  is  completely  final,  has  thereby  ob- 
tained the  end  of  his  suit,  and  precluded  himself  from  afterwards 
proceeding  against  the  others ;  for  a  plaintiff  cannot  have  two  or 
more  final  judgments  in  the  same  action,  founded  upon  a  contract, 


Sept.  1832.]  OF  PENNSYLVANIA.  129 

[Beltzhoover  v.  The  Commonwealth.] 

whether  it  be  a  joint  or  several  action,  unless  it  be  by  a  statutory 
provision,  which  does  not  exist  in  this  case. 

The  judgment  against  Lazarus  Stewart  is  affirmed,  but  the  judg- 
ment and  award  against  Henry  Beltzhoover  is  reversed. 

Judgment  reversed. 


Franklin  against  Wray. 

Upon  an  appeal  from  the  judgment  of  a  justice,  by  the  defendant,  the  plaintiff 
recovered,  in  court,  less  than  before  the  justice,  the  defendant  having  given  new 
evidence.  Held :  that  each  party  should  pay  their  own  costs,  which  accrued  subse- 
quently to  the  appeal,  and  that  the  defendant  should  pay  the  costs  which  accrued 
before  the  justice. 

ERROR  to  the  common  pleas  of  Jllleghany  county. 

James  Wray  sued  William  Franklin  before  a  justice  of  the  peace, 
who  rendered  a  judgment  for  the  plaintiff  for  16  dollars  and  50  cents, 
from  which  the  defendant  appealed  to  the  common  pleas,  where  the 
cause  was  arbitrated  ;  the  defendant  gave  evidence  which  he  had  not 
given  to  the  justice,  and  the  plaintiff  obtained  an  award  for  18  cents 
and  costs  of  suit.  To  reverse  the  judgment  as  to  costs,  this  writ 
of  error  was  sued  out. 

W.  W.  Fetterman,  for  plaintiff  in  error,  cited,  Grace  v.  Jlltemus, 
15  Serg.  <$•  Rawle  133 ;  Kemble  v.  Saunders,  10  Serg.  fy  Rawle  193  ; 
Downs  v.  Lewis,  13  Serg.  <£•  Rawle  198. 

Hamilton,  for  defendant  in  error. 

The  opinion  of  the  Court  was  delivered  by 

KENNEDY,  J. — This  suit  was  commenced  by  the  defendant  in  error, 
before  a  justice  of  the  peace  of  Alleghany  county,  who  gave  a  judg- 
ment in  his  favour  for  16  dollars  and  50  cents,  and  the  costs  of  suit, 
against  the  plaintiff  in  error,  who  appealed  to  the  court  of  common 
pleas ;  where  the  defendant  in  error  entered  a  rule  of  arbitration, 
and  obtained  a  report  in  his  favour  for  18  and  3-4ths  cents  only, 
and  the  costs  of  suit.  Under  this  award  all  the  costs,  as  well  those 
incurred  on  the  appeal  as  those  which  accrued  before  the  justice, 
were  taxed  against  the  plaintiff  in  error,  and  this  is  the  error  com- 
plained of. 

It  has  been  admitted  that  in  this  case  new  evidence  was  given  by 

the  plaintiff  in  error,  on  the  trial  of  the  cause  upon  the  appeal,  which 

was  not  exhibited  on  the  trial  before  the  justice.     This  makes  the 

case  similar,  in  every  respect,  to  Grace  v.  Jtttemus,  15  Serg.  fy  Rawle 

R 


130  SUPREME  COURT  [Pittsburgh, 

[Franklin  v.  Wray.] 

133  ;  and  Kemble  v.  Sawders,  10  Serg.  fy  Rawle  193 :  where  it  was 
decided  by  this  court,  that  the  plaintiff' before  the  justice  was  entitled 
to  recover  from  the  defendant  his  costs  which  accrued  before  the 
justice,  but  that  each  party  must  pay  his  own  costs  on  the  appeal. 
And  so  in  the  case  of  Downs  v.  Lewis,  13  Serg.  fy  Rawle  198,  the 
same  principle  is  recognised  ;  and  said,  that  if  the  defendant  before 
the  justice  had  given  no  new  testimony  on  the  trial  upon  the  appeal, 
that  he  would  have  been  entitled  to  have  recovered  full  costs  ;  and 
the  award  of  the  arbitrators,  which  allowed  costs  to  the  plaintiff 
before  the  justice  in  that  case,  was  therefore  reversed  as  to  them. 

The  arbitrators  in  the  present  case  were,  therefore,  wrong,  in 
awarding  costs  to  the  plaintiff* below,  after  having  reduced  by  their 
award  the  amount  of  the  judgment  of  the  justice.  As  to  the  costs 
on  the  appeal,  the  award  of  the  arbitrators  and  the  judgment  of  the 
court  below  are  reversed,  and  ordered  that  each  party  pay  his  own 
costs,  accruing  subsequently  to  judgment  of  the  justice,  and  that  the 
plaintiff  in  error  pay  the  costs  on  the  proceedings  before  the  justice. 


Dunham  against  Kinnear. 

A  party  defendant  cannot  disaffirm  an  act  of  the  plaintiff,  as  being  fraudulent  and 
void,  and  at  the  same  time  predicate  a  claim,  as  matter  of  defence,  upon  it. 

In  an  action  for  hire,  a  contract  of  hire  must  be  proved  ;  proof  of  a  loan  of  the 
property  will  not  support  the  action. 

ERROR  to  Warren  county. 

This  was  an  action  of  assumpsit,  brought  by  the  defendant  in 
error,  against  the  plaintiff  in  error,  in  the  court  below.  The  declara- 
tion contained  two  counts,  one  for  the  price  of  a  wagon  sold  and 
delivered,  and  the  other  for  the  hire  of  a  wagon.  The  facts  from 
the  evidence  appeared  to  be,  that  Kinnear  was  indebted  to  Dunham, 
and  agreed  to  deliver  him  a  wagon,  at  a  certain  price,  which  ex- 
ceeded considerably  the  amount  of  the  debt  owing  by  Kinnear  to 
Dunham.  The  debt  was  to  be  deducted  out  of  the  price  of  the 
wagon.  The  wagon  was  brought  to  Dunham,  when  the  parties 
settled  and  adjusted  their  accounts,  which  had  arisen  between  them 
anterior  to  that  date,  but  disagreeing  about  the  time  at  which  Dun- 
ham should  pay  to  Kinnear  the  balance  of  the  price  of  the  wagon, 
after  deducting  the  balance  which  was  coming  to  Dunham ;  on  the 
settlement  of  their  accounts,  they  agreed  to  record  the  contract  for 
the  sale  of  the  wagon,  and  that  Kinnear  should  give  Dunham  his 
note  for  the  payment  of  this  balance,  three  days  after  that  date  with 
interest,  which  was  accordingly  given.  The  wagon,  by  agreement 
between  them  at  the  same  time,  was  left  in  the  possession  of  Dun- 


Sept.  1832.]  OF  PENNSYLVANIA.  131 

[Dunham  v.  Kinnear.] 

ham  upon  loan  for  a  short  time.  A  few  weeks  afterwards,  Kinnear 
sent  for  the  wagon,  but,  being  abroad  on  use,  it  was  not  obtain- 
ed. Shortly  after  this,  Kinnear  sold  it  to  a  third  person,  to  whom 
he  gave  an  order  upon  Dunham  for  it.  The  order  was  present- 
ed to  Dunham,  but  he  refused  to  deliver  the  wagon,  saying  that 
he  would  not  give  it  up  to  either  him  or  Kinnear,  until  he  was  paid 
the  debt  which  Kinnear  owed  him.  Kinnear  then  demanded  the 
wagon  in  person  himself,  but  Dunham  still  refused  to  let  him  have 
it,  until  he  paid  the  debt.  Kinnear  told  him  that  he  would  make 
him  pay  hire  for  every  day  he  detained  it.  After  this,  Dunham  sent 
the  wagon  into  Warren  county,  in  which  Kinnear  resided,  as  he  said, 
for  a  load  of  shingles.  It,  however,  was  left  there,  and  Dunham, 
shortly  afterwards,  went  to  the  place  where  it  was  left,  and  removed 
it  some  distance  off  into  the  woods,  to  prevent  Kinnear  from  finding 
it,  as  he  alleged.  A  certain  Alexander  Thompson  had  a  judgment 
against  Kinnear,  before  Samuel  J\l'Gee,  a  justice  of  Warren  county, 
amounting  with  interest  and  costs  to  about  15  dollars.  M'Gee,  the 
justice,  sent  word  to  Thompson  to  direct  an  execution  to  be  issued,  or 
he  thought  he  would  lose  his  money.  About  this  time  Dunham 
came  to  the  house  of  Thompson,  and  said,  as  Thompson  understood 
him,  that  he  was  going  to  Kinnear's  for  money.  Thompson  told 
Dunham  of  his  judgment  againt  Kinnear,  and  said  he  would  write  to 
have  an  execution  issued  upon  it ;  Dunham  then  agreed  to  buy  the 
judgment  of  Thompson,  who  gave  Dunham  an  authority  to  issue  the 
execution,  and  a  receipt  for  the  amount  of  the  judgment,  upon 
Dunham's  promise  to  pay  it.  Dunham  did  not  disclose  to  Thompson 
any  thing  about  the  wagon. 

After  this,  Dunham  caused  an  execution  to  be  sued  out  upon  the 
judgment,  which  he  put  into  the  hands  of  a  constable,  whom  he 
took  to  the  wagon,  about  ten  miles  from  Kinnear's  residence,  and 
directed  him  to  levy  upon  it,  as  Kinnear's  property.  The  constable, 
after  being  indemnified  by  Dunham,  did  so.  He  then  advertised  the 
wagon  for  sale,  as  required  by  law,  and  sold  it  to  Dunham,  for 
21  dollars,  he  being  the  highest  bidder.  Dunham  produced  Thomp- 
son's receipt  for  the  debt  and  interest  due  on  the  judgment,  and  after 
deducting  the  amount  of  it  from  the  amount  of  sale,  paid  the  differ- 
ence to  the  constable,  and  the  amount  of  the  debt  and  interest  he 
paid  to  Thompson. 

Kinnear's  note  to  Dunham  was  given  on  the  17th  of  October  1828, 
for  the  payment  of  18  dollars  and  20  cents,  three  days  after  that 
date  with  interest :  and  at  the  same  time  the  wagon  was  loaned  by 
Kinnear  to  Dunham.  The  wagon  was  sold  by  the  constable  on  the 
14.th  of  January  following,  and  was  proved  to  be  worth  45  dollars; 
and  that  the  usual  hire  given  for  such  a  wagon  was  50  cents  per  day. 

It  was  also  proved  that  Dunham  said  at  different  times  to  different 
persons  that  he  would  pay  Kinnear  whatever  the  wagon  was  fairly 
worth,  if  he  would  call  and  settle  with  him,  notwithstanding  the  sale 


132  SUPREME  COURT  [Pittsburgh, 

[Dunham  v.  Kinneor.] 

by  the  constable.     This  proof  was  made  on  the  part  of  Kinnear,  the 
defendant  in  error. 

Upon  this  state  of  facts  the  court  below  charged  the  jury,  that "  the 
plaintiff's  claim  was  for  the  hire  of  a  wagon,  and  for  the  price  and 
value  of  the  same  wagon.  The  defendant,  in  defence,  showed  he 
bought  the  same  at  constable's  sale,  under  an  execution,  at  the  suit 
of  A.  Thompson :  and  one  question  raised,  for  the  decision  of  the  jury, 
is,  Was  that  sale  and  purchase  by  the  defendant  fraudulent.  If  the 
jury  should  be  satisfied  that  it  was  an  actual  fraud,  practised  by  the  unfair 
management  of  defendant  on  the  plaintiff,  it  is  void ;  and  if  so,  the  money 
which  the  defendant  paid  to  the  constable  or  Jl.  Thompson,  is  not  to  be 
taken  into  consideration  as  a  set-off,  as  claimed  by  defendant.  Defendant 
has  also  shown  a  note  of  18  dollars  and  20  cents  against  plaintiff, 
and  this  being  undisputed,  is  allowed  as  a  credit  to  defendant.  But 
plaintiff  claims  50  cents  a  day  for  the  hire  of  a  wagon  from  the  time 
defendant  obtained  it  from  plaintiff  on  the  16th  of  October  1828, 
until  the  sale  of  it  on  the  20th  of  January  1829;  and  also  the  value 
of  the  wagon  at  the  time  of  sale.  For  the  jury  to  allow  both 
would  be  unreasonable ;  as  it  would  allow  plaintiff  to  claim  for 
the  same  wagon  so  largely  beyond  its  value.  Although  50  cents 
a  day  might  be  a  fair  rate  of  hire  per  day  for  a  few  days  or  a  week, 
yet  it  would  seem  unreasonable  for  plaintiff  to  claim  that  rate  per 
day,  if  he  claim  for  several  months.  No  man  hires  a  wagon  at 
that  rate  per  day  to  keep  it  for  months.  /  do  not  say  that  plaintiff 
may  not  recover  for  a  short  period  in  addition  to  the  value  of  the  wagon. 
The  subject  of  the  sale  of  the  wagon  by  the  constable,  in  Warren 
county,  by  defendant's  procurement,  when  it  had  been  left  in  his 
possession  in  Crawford  county,  and  all  the  various  circumstances,  are 
before  the  jury  for  their  decision ;  whether  it  is  an  actual  fraud  and  a 
void  sale,  and  if  so,  they  will  judge  on  the  proof  what  ought  to  be  allowed 
for  the  wagon  after  making  the  deduction  of  the  note  in  evidence." 

After  the  delivery  of  this  charge  to  the  jury,  they  returned  a  ver- 
dict in  favour  of  the  plaintiff  below  for  58  dollars  damages,  besides 
costs  of  suit ;  upon  which  the  court  rendered  a  judgment. 

The  errors  in  the  charge  of  the  court  below  are,  that  the  court  told 
the  jury  that  if  they  should  believe  that  the  plaintiff  in  error  was 
guilty  of  an  actual  fraud  in  procuring  a  sale  to  be  made  of  the  wagon 
by  the  constable,  that  the  sale  was  void,  and  that  they  ought  not  to 
allow  him  as  a  set-off  the  money  that  he  paid  to  Thompson  for  the 
judgment  against  the  defendant  in  error,  nor  yet  the  money  that  was 
paid  to  the  constable. 

Again,  that  although  the  court  below  told  the  jury  that  "  no  man 
hired  a  wagon  at  the  rate  of  50  cents  a  day  for  months,"  yet  the 
president  of  the  court  qualified  it  by  saying,  "  I  do  not  say  that  plain- 
tiff may  not  recover  for  a  short  period  in  addition  to  the  value  of  the 
wagon." 

Pearson,  for  plaintiff  in  error. 


Sept.  1832.]  OF  PENNSYLVANIA.  133 

[Dunham  v.  Kinnear.] 

Calbreath,  for  defendant  in  error. 

The  opinion  of  the  Court  was  delivered  by 

KENNEDY,  J. — It  must  be  recollected  that  the  plaintiffbelow  found- 
ed his  claims  against  the  defendant,  exclusively  upon  contracts  or 
agreements  made  between  them. .  First,  upon  a  contract  by  which 
the  plaintiff  below,  as  he  alleged,  sold  and  delivered  a  wagon  to  the 
defendant.  And  secondly,  upon  a  contract  by  which  he  hired  his 
wagon  to  the  defendant  at  50  cents  per  day. 

As  to  the  sale  of  the  wagon,  it  appeared  from  the  evidence  that  it 
had  been  the  property  of  the  plaintiffbelow,  without  dispuie,  and  that 
after  the  sale  made  of  it  by  the  constable,  that  the  defendant  below 
had  said  and  repeated  at  different  times  to  different  persons,  "  that 
he  would  pay  Kinnear,  the  plaintiff  below,  whatever  the  wagon  was 
fairly  worth,  if  he  would  call  and  settle  with  him,  notwithstanding  the  sale 
by  the  constable"  It  was  not  pretended  that  there  was  any  other  pro- 
mise made  by  Dunham  to  pay  Kinnear  for  the  wagon ;  and  of  course 
nothing  beside  this  upon  which  he  could  support  or  claim  any  thing 
under  the  first  count  in  his  declaration  for  the  sale  and  delivery  of 
the  wagon.  But  this  was  not  an  absolute  unconditional  promise  of 
Dunham  to  pay  Kinnear  what  the  wagon  was  fairly  worth.  He 
promised  to  do  so  only  upon  condition  "if  he  would  call  and  settle  with 
him"  Now  it  does  not  appear  that  Dunham  had  any  claim  against 
Kinnear  but  the  amount  of  the  note,  and  the  money  which  he  had 
paid  for  Thompson's  judgment,  and  to  the  constable,  upon  the  sale  of 
the  wagon  made  under  that  judgment.  When  we  refer  to  those 
things,  as  disclosed  by  the  evidence  given  on  the  trial  which  had 
taken  place  between  these  parties,  it  is  difficult  to  put  any  other  con- 
struction upon  the  promise  of  Dunham  as  proved,  than  that  he 
would  allow  and  pay  to  Kinnear  a  fair  price  for  the  wagon,  if  he 
would  settle,  and  let  the  amount  of  the  note  and  the  amount  of  the  money 
which  Dunham  had  paid  for  him  on  account  of  Thompson's  judgment,  be 
deducted  out  of  the  price  of  the  wagon.  Why  should  Dunham  have 
qualified  his  promise  by  saying  "  if  he  would  call  and  settle  with  him" 
These  words  cannot  be  considered  as  having  been  superadded  without 
any  meaning  on  the  part  of  Dunham.  It  seems  to  be  admitted  that 
he  must  have  had  an  allusion  to  the  amount  of  the  note  ;  but  why 
allude  to  the  note  more  than  to  the  money  which  he  had  paid 
on  account  of  Thompson's  judgment;  for  he  never  seems  to  have 
intimated  that  he  did  not  consider  himself  justly  entitled  to  the 
last  as  well  as  the  first,  or  that  he  was  willing  to  relinquish  it. 
Dunham  had  a  right,  and  the  power  to  qualify  his  promise  as  he 
pleased ;  and  upon  the  other  hand,  Kinnear  was  at  liberty  to  accept 
of  it  or  not,  as  he  pleased.  He  had  no  power  to  make  it  binding 
upon  Dunham  beyond  what,  or  otherwise  than  as,  he  intended. 
Whether  such  was  the  meaning  and  intention  of  Dunham  in  making 
his  promise  to  Kinnear,  as  I  have  suggested,  ought  to  have  been 
submitted  by  the  court  below  in  their  charge  to  the  jury,  to  be  de- 


134  SUPREME  COURT  [Pittsburgh, 

[Dunham  v.  Kinncar.] 

cided  by  them  as  a  matter  of  fact,  and  if  they  should  find  that  such 
was  Dunham's  intention  and  understanding  of  his  promise  at  the 
time  he  made  it,  to  have  told  them,  as  matter  of  law,  that  they  were 
bound  to  set  a  fair  price,  according  to  the  evidence,  upon  the  wagon, 
and  to  deduct  from  that  the  amount  of  the  note,  and  the  amount  of 
the  money  paid  on  account  of  Thompson's  judgment  and  the  execu- 
tion upon  it ;  and  if  these  two  last  sums  should  fall  short  of  a  fair 
price  for  the  wagon,  to  return  a  verdict  in  favour  of  Kinnear  for  the 
difference ;  or  if  they  should  exceed  the  price  of  the  wagon,  to  return 
a  verdict  in  favour  of  Dunham  for  the  excess,  whatever  it  might  be. 

But  under  another  view  of  this  part  of  the  charge,  there  was 
clearly  error  in  it.  Whether  Dunham  was  guilty  of  a  fraud  or  not  in 
procuring  a  sale  to  be  made  of  the  wagon  under  Thompson's  judg- 
ment, he  had  an  undoubted  and  just  right  to  be  paid  the  amount  of 
it  by  Kinnear,  if  Kinnear  took  advantage  of  such  fraud,  in  case  it  had 
been  commited,  and  upon  that  ground  set  the  constable's  sale  aside, 
and  insisted  upon  having  his  wagon  returned  to  him  or  being  paid 
full  price  for  it :  Kinnear  can  not  be  permitted  to  blow  hot  and  cold 
with  the  same  breath  ;  that  is  to  say,  that  the  sale  of  the  wagon  by 
the  constable  as  his  property  shall  be  good  to  satisfy  and  extinguish 
the  judgment  of  Thompson  that  was  assigned  to  Dunham,  but  at  the 
same  time  void,  that  he  may  recover  a  full  price  for  it  from  Dunham 
and  put  it  into  his  pocket.  If  he  then  annuls  the  sale  for  the  fraud 
practised,  as  is  alleged  by  Dunham,  the  judgment  must  be  considered 
as  standing  in  full  force  and  in  no  wise  satisfied,  and  Kinnear  bound 
to  pay  or  satisfy  it  to  Dunham,  who  bought  it,  as  he  had  an  unques- 
tionable right  to  do,  of  Thompson,  the  plaintiff  in  it.  Hence  it  would 
follow,  that  Dunham,  in  case  of  Kinnear1  s  avoiding  the  sale,  would 
have  a  right  to  issue  a  new  execution  upon  the  judgment,  in  order 
to  obtain  satisfaction  of  it,  or  to  set  off  the  amount  of  it  in  this  action 
at  his  election.  The  surplus  money  which  he  paid  to  the  constable 
beyond  satisfying  all  the  costs,  he  would  be  entitled  to  receive  back 
from  the  constable  or  justice,  or  whoever  may  have  it,  unless  Kinnear 
himself  has  received  it,  and  in  that  case  Dunham  would  be  entitled 
to  defalk  in  this  action,  not  only  the  debt  and  interest,  but  all  the 
costs,  excepting  the  costs  of  sale  incurred  upon  the  judgment,  to- 
gether with  the  surplus  money  paid  to  the  constable.  If  the  sale  of 
the  constable  be  fraudulent  and  void,  and  was  brought  about  by 
Dunham,  he  ought  to  pay  the  costs  of  the  sale  out  of  his  own  pocket, 
but  to  lose  no  more. 

In  what  the  court  below  said  to  the  jury  on  the  subject  of  hiring 
the  wagon,  there  was  palpable  error,  because  there  is  not  a  tittle  of 
testimony  to  support  the  count  laid  in  the  declaration  for  that  claim, 
or  going  to  show  that  there  ever  was  any  agreement  or  contract  for 
hiring  the  wagon  by  Dunham  of  Kinnear.  The  only  evidence  of 
contract  given  by  which  Dunham  was  to  have  the  use  of  the  wagon, 
was  a  loan,  which  is  quite  the  opposite  of  hiring,  and  must  be  so 
understood  by  every  one.  But  the  president  told  the  jury,  "  I  do  not 


Sept.  1832.]  OF  PENNSYLVANIA.  135 

[Dunham  v.  Kinnear.] 

say  that  the  plaintiff  may  not  recover  for  a  short  period,  in  addition 
to  the  value  of  the  wagon."  This  was  in  effect  telling  the  jury  that 
"  if  they  thought  proper,  they  might  allow  the  plaintiff  below  a  hire 
of  50  cents  per  day  for  a  short  period."  And  it  would  seem,  from 
the  amount  of  the  verdict,  that  they  did  do  so.  The  full  value  or 
price  of  the  wagon,  according  to  the  evidence,  was  45  dollars,  and 
beyond  this,  with  its  interest  up  to  the  time  of  trial,  in  an  action  of 
assumpsit,  or  even  in  trover,  the  jury  had  no  right  to  go  in  assessing 
the  damages.  Adding  interest  then  to  the  45  dollars  up  to  the  time 
of  trial,  would  have  brought  the  price  of  the  wagon  to  nearly  50 
dollars;  from  which,  according  to  the  direction  of  the  court,  the 
note  of  18  dollars  and  20  cents,  with  its  interest,  which  was  20  dol- 
lars, was  to  be  deducted,  which  would  have  left  a  balance  of  30 
dollars  :  but  the  jury  gave  a  verdict  for  58  dollars,  nearly  double  30 
dollars.  Here  are  28  dollars  added  by  the  jury  for  the  hire  of  the 
wagon.  There  being  no  evidence  of  contract  for  the  hire  of  the 
wagon,  the  court  erred  in  directing  them  that  they  might  allow  any 
thing  on  that  count  in  the  declaration  for  the  plaintiff  below. 
Judgment  reversed,  and  a  venire  facias  de  novo  awarded. 


Stewart  against  Stocker. 

When  money  is  made  by  the  sheriff,  and  brought  into  court  for  appropriation,  and 
facts  are  disputed,  it  is  competent  for  the  court  to  direct  an'  issue  in  which  the  truth 
of  those  facts  may  be  ascertained  by  a  jury,  and  such  issue  may  be  put  into  any  form 
by  which  the  object  may  be  more  readily  attained. 

A  mortgage  or  judgment  may  be  given  to  secure  a  creditor  for  a  debt  due,  for 
responsibilities  which  are  contingent,  or  for  future  advances. 

The  validity  of  an  execution,  like  that  of  a  judgment,  cannot  be  inquired  into 
collaterally. 

A  defendant  in  an  execution,  the  proceeds  of  whose  property  is  in  court  for  appro- 
priation, may  be  examined  as  a  witness  on  the  trial  of  a  feigned  issue,  to  ascertain 
facts  in  relation  to  it,  his  interest,  as  regards  the  plaintiff  and  the  defendant  in  such 
issue,  being  equal. 

ERROR  to  the  common  pleas  of  Jllleghany  county. 

This  was  a  feigned  issue,  directed  by  the  common  pleas  to  ascer- 
tain certain  facts  respecting  the  appropriation  of  the  proceeds  of  the 
sale  of  the  property  of  Hosier  <$•  Co.,  in  which  John  C.  Stocker  was 
plaintiff,  and  Lazarus  Stewart,  sheriff,  was  defendant.  The  facts 
which  gave  rise  to  the  questions  decided  are  fully  stated  in  the 
opinion  of  the  court. 

Ross  and  Forward,  for  plaintiff  in  error. 
Selden,  for  defendant  in  error. 


136  SUPREME  COURT  [Pittsburgh, 

[Stewart  v.  Stacker.] 

The  opinion  of  the  court  was  delivered  by 

HUSTON,  J. — This  was  a  feigned  issue  directed  by  the  court  below, 
and  subsequently  modified  by  direction  of  the  court,  and,  as  it  would 
seem,  with  the  consent  of  all  parties.  It  happens  sometimes  that  in 
certain  proceedings  before  a  court,  on  motion,  or  otherwise,  certain 
facts  are  contested,  and  either  no  full  evidence,  or  contradictory  evi- 
dence is  given.  It  is  usual  in  such  cases  to  form  an  issue,  in  order 
to  ascertain  the  facts,  and  this  mode  is  directed  in  some  cases  by 
act  of  assembly. 

As  the  object  is  to  ascertain  some  fact  or  facts,  the  issue  is  moulded 
so  as  to  answer  this  purpose.  The  usual  mode  is  to  join  issue  on  a 
wager,  in  which  one  party  asserts  a  fact  or  facts  to  be  in  a  certain 
way,  and  the  other  denies  ;  but  it  is  not  necessary  that  this  form 
should  be  always  pursued.  In  this  case  the  form  adopted  would 
seem  to  have  been  intended,  and  certainly  is  calculated  to  try  the 
facts  and  law  both,  and,  in  truth,  did  so,  although  this  would  seem 
to  be  more  than  was  originally  intended,  and  perhaps  more  than  is 
usual  in  such  cases.  This  has  been  objected  to  here,  and  much 
insisted  on  ;  but  as  no  objection  seems  to  have  been  made  on  this 
ground  until  after  the  verdict  and  judgment,  I  could  not  listen  to  it 
in  this  stage  of  the  proceedings,  except  in  a  very  peculiar  case  indeed  ; 
as  where  the  object  for  which  the  issue  was  directed  was  lost  sight 
of  in  forming  the  issue,  or  in  the  course  of  proceeding  in  it.  The 
court  who  directed  such  issue,  when  it  is  tried  before  themselves, 
can  and  ought  to  mould  it  into  the  form  calculated  to  answer  the 
end  proposed  ;  and  if  it  is  found  this  has  not  been  done,  may  arrest 
the  proceedings  and  begin  anew  ;  but  if  no  objection  is  made  until 
the  conclusion  of  the  trial,  neither  that  court  nor  this  (for  we  take 
writs  of  error  to  proceedings  in  a  feigned  issue  in  this  state)  ought 
to  reverse  for  what  was  not  objected  to,  and,  of  course,  not  decided 
by  the  court  below,  unless  it  is  rendered  absolutely  necessary  to 
reach  the  whole  of  the  case. 

Some  facts  and  dates  are  necessary  to  understand  this  case.  In 
the  spring  of  1823,  Jlnthony  Bulin  and  Henry  C.  Hosier,  trading 
under  the  firm  of  Bosler  fy  Co.  found  themselves  greatly  involved. 
After  making  some  arrangements  in  favour  of  one  or  two  persons, 
with  which  we  have  nothing  to  do,  they,  on  the  23d  April  1823, 
gave  their  bond,  with  a  warrant,  to  confess  judgment,  and  no  stay  of 
execution  stipulated  for,  in  the  sum  of  10,900  dollars,  to  the  Bank  of 
Pittsburgh;  conditioned  to  pay  the  sum  of  5455  dollars,  with  interest 
from  this  date,  being  the  amount  of  the  following  eight  notes  ;  the 
first  seven  being  drawn  by  Bosler  fy  Co.,  and  the  last  by  Henry  C. 
Bosler,  discounted  in  the  Bank  of  Pittsburgh ;  all  payable  at  sixty 
days  from  their  date.  1st  dated  March  5th,  1823,  indorsed  by  M. 
Neville,  for  425  dollars ;  2d  dated  March  5th,  1823,  indorsed  by 
George  Poe,  Jun.,  for  425  dollars  ;  3d  dated  March  19th,  1823,  in- 
dorsed by  /.  W.  Biddk  #  Co.,  for  900  dollars  ;  4th  dated  April  7th, 
1823,  indorsed  by  James  R.  Butler,  for  675.  dollars  ;  5th  dated  April 


Sept.  1832.]  OF  PENNSYLVANIA.  137 

[Stewart  v.  Stocker.] 

9th,  1823,  indorsed  by  J.  W.  Biddle  fy  Co.,  for  500  dollars ;  6ih 
dated  April  9th,  1823,  indorsed  by  O.  Orsmby,  for  1100  dollars  ;  7th 
dated  April  23d,  1823,  indorsed  by  /.  W.  Biddle  fy  Co.  and  George 
Poe,  Jim.,  for  1280  dollars  ;  8th,  and  last,  dated  March  12th,  1823, 
indorsed  by  William  Hill,  for  150  dollars:  and  well  and  truly  pay  all 
notes  given  to  renew  said  notes,  and  each  and  every  of  them  ;  and 
shall  well  arid  truly  pay  off  said  notes  as  required,  and  save  harmless 
and  indemnify  said  Bank  of  Pittsburgh,  in  every  respect,  with  re- 
gard to  said  notes,  without  any  fraud  or  further  delay,  then  this 
obligation  to  be  void,  otherwise  to  be  and  remain  in  full  force  and 
virtue. 

This  judgment  was  entered  at  the  instance  and  on  the  repeated 
application  of  Mr  Poe,  who  was  the  indorser  on  two  of  the  notes, 
amounting  to  about  1700  dollars. 

Bosler  and  Bulin  vf  ere  indebted  to  the  plaintiff,  Stocker  and  others, 
on  notes  or  bonds  ;  for  these  Poe  was  attorney  in  fact  and  agent ; 
this  I  shall  not  examine,  as  it  is  acknowledged  he  was  attorney  in 
fact  and  agent ;  and  he  had  instituted  suits  on  all  these  claims ;  and 
under  our  act  of  assembly,  they  were  referred  to  arbitrators,  who 
were  to  meet  on  the  27th  of  May  1823,  and  whose  award  would 
operate  as  a  lien  on  the  lands  of  Bosler  and  Bulin,  from  the  time  it 
was  filed,  though  no  executions  could  be  issued  on  such  awards, 
until  after  twenty  days  from  the  time  of  filing  them,  and  not  then, 
if  an  appeal  duly  filed,  until  the  appeal  should  be  tried.  It  was 
well  known,  as  the  debts  were  due,  that  there  could  not  and  would 
not  be  any  appeal,  and  that  executions  might  issue  in  each  of  those 
cases,  about  the  16th  or  17th  of  June. 

On  the  10th  of  June  1823,  after  three  other  executions  had  issued 
at  the  suit  of  other  persons,  and  the  legality  and  regularity  of  which 
are  not  disputed,  an  execution  issued  on  the  judgment,  first  above 
mentioned,  The  Bank  of  Pittsburgh  v.  Bosler  and  Bulin;  at  whose  im- 
mediate instance  it  issued,  is  disputed ;  but  Mr  Poe  attended  the 
sheriff,  assisted  in  making  the  levy,  wrote*  the  schedule  of  every 
article  levied  on,  urged  the  sale,  got  the  advertisements  printed, 
stating  every  article  to  be  sold,  and  that  they  were  to  be  sold  on  an 
execution  issued  by  the  Pittsburgh  Bank  against  Bosler  and  Bulin. 

As  soon  as  the  reports  of  arbitrations  had  been  made,  twenty 
days  had  expired  and  no  appeal,  executions  were  issued  at  the  suit  of 
Stocker  and  other  persons  for  whom  Poe  was  agent,  and  these  were 
levied  on  the  same  personal  property,  but  subject  to  prior  levies. 
The  personal  property  was  sold,  and  produced  about  6738  dollars, 
being  enough  to  pay  the  three  executions  prior  to  that  of  the  bank  ; 
and  part  of  the  execution  of  the  bank,  but  not  all  of  it ;  and  leaving 
nothing  for  the  subsequent  executions  of  Stocker  and  the  others. 

I  must  now  go  back  a  little  space.  Bosler  and  Bulin  owed  to  the 
Bank  of  the  United  States  nearly  100,000  dollars,  for  which,  or  great 
part  of  which,  sundry  persons,  their  indorsers,  were  also  liable  ;  and 
to  secure  this  debt,  and  save  those  indorsers,  they,  on  the  26th  of 


138  SUPREME  COURT  [Pittsburgh, 

[Stewart  v.  Stocker.] 

May  1823,  the  very  day  before  Stocker  and  others  expected  a  report 
of  arbitrations  and  lien,  conveyed  a  large  amount  of  real  estate  to 
the  bank.  There  is  no  allegation  that  the  debt  was  net  fairly  due, 
and  the  property  conveyed,  was  put  at  a  fair,  nay,  at  a  high  price. 
To  induce  the  bank  to  accept  of  it,  Hosier  and  Bulin  covenanted  to 
discharge  all  liens  which  bound  it  at  the  date  of  the  deed  ;  and  if  he 
did  discharge  all  prior  liens,  the  bank  were  to  release  him  and  his 
indorsers  from  all  claim,  and  take  the  property  in  full  satisfaction  of 
their  demands.  The  deed  to  the  bank  was  duly  recorded.  When 
Mr  Poe  first  knew  of  this  deed  to  the  bank  does  not  appear.  The 
court  of  common  pleas,  which  sat  often  in  Pittsburgh  by  adjournment, 
was  in  session  between  the  time  of  issuing  the  execution  of  the 
bank  and  the  sale  under  that  execution,  but  no  application  was  made 
to  the  court  on  the  subject. 

On  the  4th  of  August  1823,  Mr  Baldwin  as  the  counsel  of  Stocker, 
but  employed  by  Poe,  Stacker's  agent,  took  a  rule  to  show  cause  why 
this  fi.  fa.  issued  at  the  suit  of  the  Pittsburgh  Bank  against  Bosler  and 
Bulin,  and  on  which  this  property  had  been  sold,  should  not  be  set 
aside ;  and  another  rule,  it  does  not  appear  by  whom,  on  the  sheriff,  to 
bring  the  money  into  court. 

Out  of  these  proceedings  arose  the  present  feigned  issue ;  much 
must  have  occurred  between  the  August  term  1823  and  October 
1826,  when  this  issue  was  directed;  and  this  matter  was  once  before 
in  this  court. 

A  very  wide  range  has  been  taken  in  the  discussion  here,  and  in 
the  court  below.  The  fairness  of  the  conduct  of  Bulin  and  Bosler  in 
their  deeds  to  the  Bank  of  the  United  States  and  other  persons,  none 
of  whom  are  before  this  court,  have  occupied  much  time.  The  only 
question  to  be  decided  here  must  be  confined  to  this  execution,  for 
the  judgment  is  not  attacked,  and,  so  far  as  we  see,  cannot  be. 

This  judgment,  in  the  name  of  the  Pittsburgh  Bank,  is  anterior  to 
the  conveyance  to  the  Bank  of  the  United  States,  and  unless  its  lien 
is  lost  for  want  of  a  sdre  facias,  would  take  its  amount  out  of  the 
lands  in  preference  to  the  Bank  of  the  United  States.  The  judgments 
of  Stocker  and  others,  of  whom  Poe  is  one  at  least,  are  subsequent  to 
that  conveyance,  and  unless  their  amount  is  recovered  from  this  per- 
sonal property,  will  not  be  paid.  If  they  get  the  proceeds  of  this 
personal  property,  they  throw  the  loss  on  the  indorsers  in  the  Bank  of 
Pittsburgh,  or  on  the  indorsers  in  the  Bank  of  the  United  States; 
for  Bosler  and  Bulin,  it  is  conceded,  can  never  pay  any  thing. 

Anthony  Bulin,  one  of  the  firm  of  Bosler  #  Co.,  was  offered  as  a 
witness  to  prove  that  this  execution  of  the  bank  was  taken  out  with 
his  assent,  on  the  constant  importunity  of  Mr  Poe.  The  counsel  of 
Stocker  objected,  and  the  witness  was  held  to  be  interested — that  he 
was  bound  to  procure  all  liens  on  the  property  conveyed  to  be  dis- 
charged ;  if  he  did  so  he  was  (o  be  released  ;  and  if  those  liens  were 
not  all  cleared  off,  he  and  his  indorsers  were  not  discharged.  It  ap- 
pears to  us  that  the  interest  of  Bulin  is  exactly  equal  either  way. 


Sept.  1832.]  OF  PENNSYLVANIA.  139 

[Stewart  v.  Stockcr  ] 

If  this  lien  on  the  lands  conveyed  to  the  Bank  of  the  United  States  is 
not  extinguished  by  this  levy  and  sale,  Bulin  will  be  liable  to  that 
bank  for  so  much  money  as  will  extinguish  it,  and  no  more  ;  the 
whole  arrangement  with  that  bank  cannot  be  rescinded  after  it  has 
recorded  its  deed,  neglected  to  fix  the  indorsers  by  protest  and  notice, 
or  if  they  were  so  fixed,  permitted  more  than  six  years  to  elapse,  and 
the  statute  of  limitations  to  operate  ;  it  can  then  at  most  recover  a 
judgment  against  Bulin,  on  his  agreement  to  extinguish  the  lien,  to 
the  amount  of  such  lien.  If  Stacker  and  others  get  this  money,  Bulin 
owes  so  much  to  the  Bank  of  the  United  States ;  if  the  Pittsburgh 
Bank  gets  this  money  and  their  lien  is  extinguished,  Bulin  owes  pre- 
cisely the  same  sum  to  Stacker  and  others;  he  is  then  disinterested, 
or,  what  is  the  same  thing,  equally  interested  either  way,  and  a 
competent  witness. 

When  this  cause  was  in  this  court  before,  (13  Serg.  fy  Rawle  199) 
the  chief  justice,  in  delivering  the  opinion  of  the  court,  intended  to 
put  at  rest  most  of  the  points  now  again  brought  before  us.  That 
opinion  says,  "  the  great  objection  to  the  plaintiff 's  action,  and  indeed 
it  seems  to  me  to  be  insuperable,  is,  that  it  calls  in  question  the  vali- 
dity of  an  execution  issued  on  a  judgment,  in  a  court  of  competent 
jurisdiction.  The  judgment  on  the  bond  of  Bulin  fy  Co.  to  the  Bank 
of  Pittsburgh  was  regular — nothing  about  stay  of  execution  in  the 
warrant  of  attorney  on  which  it  was  issued.  It  was  not  void  ;  if  erro- 
neous or  irregular,  it  might  have  been  set  aside  on  writ  of  error,  or 
quashed  on  motion  ;  but  without  resorting  to  either  of  these  methods 
the  plaintiff  has  undertaken  to  invalidate  it  collaterally  in  this  ac- 
tion ;  this  is  against  all  principle.  The  execution,  until  quashed  or 
reversed,  is  good." 

The  court  there  state  that  a  judgment  informally  entered  is  good 
until  reversed ;  and  the  same  principle  applies  to  an  execution  ;  they 
state  a  judgment  by  fraud  as  an  exception,  but  then  the  plea  of  per 
fraudem  must  be  replied  to  it,  and  there  is  no  question  of  fraud  on 
this  record,  &c.  Now  it  seems  to  me  the  same  matter  has  been  tried 
again  in  the  same  suit,  on  the  same  declaration,  plea  and  issue,  but 
with  this  difference,  that  this  is  a  feigned  issue,  that  a  real  one;  and 
that  the  matter  trying  is  in  no  respect  different.  No  fact  is  stated 
to  be  ascertained  by  the  issue ;  it  is  one  in  which  law,  equity  and 
fact  are  blended ;  the  matter  and  whole  matter  contested  in  the  real 
suit  is  put  in  issue  in  this  feigned  issue,  not  even  changing  the  form. 

The  opinion  of  the  court  was  asked  on  sundry  points  proposed, 
and  error  is  assigned  in  not  answering  the  second,  and  in  erroneous 
or  equivocal  answers  to  the  third  and  fourth. 

The  second  is  not  answered ;  it  and  the  third  may  be  taken  to- 
gether ;  they  both  ask  the  opinion  of  the  court  as  to  the  effect  of  Mr 
Foe's  conduct  in  procuring  the  execution,  advertisement  and  sale  on 
the  judgment  of  the  bank,  and  whether  these  acts  do  not  preclude 
him  from  objecting  to  those  acts,  and  setting  all  this  aside. 

The  answer  in  the  charge  is,  that  the  "jury  may  infer  from  those 


140  SUPREME  COURT  [Pittsburgh, 

IStowart  v.  Stocker.] 

facts  that  his  urgency  proceeded  from  a  wish  to  secure  the  amount 
of  his  own  personal  debt,  and  of  those  judgments  wherein  he  acted 
as  agent  for  the  plaintiffs."  Now  this,  instead  of  answering  the 
point  proposed,  amounls  only  to  telling  the  jury  that  two  inferences 
may  be  drawn  from  the  facts  proved,  but  does  not  tell  them  what 
the  law  would  be,  if  found  as  the  defendants  supposed  ;  and  is  erro- 
neous, if  found  as  the  judge  supposes  probable.  Each  supposition 
admits  he  did  the  acts  stated  by  the  defendants,  and  the  judge  says 
if  he  did  them  with  a  view  to  secure  Stacker's  judgment,  which  he 
knew  he  would  obtain  on  the  27th  of  May,  and  several  others, 
among  which  was  one  of  his  own  on  the  same  day,  that  all  may  be 
right ;  that  he  may  have  used  an  execution  on  the  bank's  judgment 
to  levy,  advertise  and  sell  Bosler  <$•  Co.'s  property,  and  then  turn 
round  and  say,  "  All  this  was  mere  show  ;  I  will  now  set  it  all  aside, 
because  as  things  have  turned  out,  it  suits  my  interest  to  do  so,  and 
that  court  ought  to  decree  accordingly."  The  law  is  not  so ;  the  pro- 
cess of  the  court  cannot  be  so  made  to  be  good  if  a  man  pleases,  and 
bad  if  the  same  man  pleases,  without  regard  to  the  interest  of  any 
and  every  body  else ;  this  I  say,  supposing  the  execution  of  the 
Bank  of  Pittsburgh  was  legally  issued — Was  it  so  1 

It  is  now  settled  in  this  state  that  a  mortgage  or  judgment  may 
be  given  to  secure  a  creditor,  not  only  for  a  debt  due,  but  for  respon- 
sibilities which  are  contingent,  nay,  for  future  advances.  Lisle  v. 
Ducomb,  5  Binn.  585.  This  judgment  to  the  Pittsburgh  Bank  was, 
as  the  judge  rightly  decided,  to  secure  the  bank,  and  also  to  secure 
the  indorsers  on  the  notes  of  Bosler  4»  Co.  then  in  bank,  or  which 
should  be  given  to  renew  those  notes  as  they  fell  due.  There  was 
no  stipulation  for  any  stay  of  execution.  The  fairness  and  validity 
of  this  judgment  is  not  questioned.  Bosler  fy  Co.  are  stated  to  have 
been  in  debt  beyond  all  hope  of  extricating  themselves.  It  was 
possible  that  they  would  on  any  day  confess  a  judgment  to  some  of 
their  creditors,  without  stay  of  execution,  and  their  large  personal 
property  might  have  been  in  an  hour  beyond  the  reach  of  this  judg- 
ment. It  was  certain  Bosler  4"  Co.  would  never  pay  the  notes  in 
the  Pittsburgh  Bank;  that  the  indorsers  must  pay  them  ;  they  would 
all  fall  due  in  June.  It  was  certain  that  Stocker  and  others  would 
take  executions  on  or  about  the  20th  of  June.  It  was  no  stretch  of 
their  authority  in  any  of  the  indorsers  in  the  Pittsburgh  Bank  to  call 
for  execution  on  that  judgment  on  the  10th  of  June,  and  to  levy  it 
instantly.  If  Bosler  <$•  Co.  had  objected  to  this  execution,  it  is  not 
easy  to  discover  on  what  grounds  the  court  could  have  set  it  aside. 
We  had  some  cases  before  us  at  Lancaster  last  May  not  unlike  this. 
Howry  and  Eshelman  were  largely  in  trade,  and  largely  in  debt;  they 
had  borrowed  money  on  bond,  with  some  of  their  friends  as  sureties 
in  those  bonds,  and  in  bank  with  some  of  their  friends  indorsers,  and 
to  secure  those  friends,  had  given  them  judgment  without  stipulat- 
ing for  any  stay  of  execution.  While  those  bonds  and  notes  had 
still  a  short  time  to  run,  the  creditors  of  Howry  and  Eslielman  sued 


Sept.  1832.]  OF  PENNSYLVANIA.  141 

[Stewart  v.  Stocker.] 

them,  entered  rules  of  arbitration,  and  obtained  judgment,  and  in 
twenty  days  could  take,  and  in  fact  did  take  execution  on  the 
twenty-first  day.  In  the  mean  time  their  sureties  and  indorsers 
took  out  executions  on  their  judgments,  though  none  of  them  had 
paid  the  debts  for  which  they  were  sureties,  and  were  not  liable  to 
suit  for  those  debts  for  some  days  yet  to  come.  The  property  was 
sold,  and  money  brought  into  court.  The  common  pleas  decided, 
and  under  the  act  of  1827,  an  appeal  to  the  supreme  court,  and  the 
executions  thus  issued  by  the  securities  and  indorsers  took  the  mo- 
ney, by  a  decision  of  a  majority  of  this  court.  In  those  cases  the  de- 
fendants, as  here,  made  no  objection  to  the  first  executions.  I  will 
add,  that  in  those  cases  the  sureties  had  paid  the  money  for  which 
they  were  bound  before  the  money  was  brought  into  court,  so  that 
there  was  no  danger  of  the  surety  recovering  money  from  his  princi- 
pal to  pay  a  debt,  and  afterwards  not  paying  it.  So  here,  the  bank 
recovering  the  debt,  the  indorsers  are  thereby  at  once  discharged;  and 
although  I  was  not  entirely  satisfied  with  the  decision  at  Lancaster, 
yet,  upon  reflection,  there  is  no  actual  injustice  in  collecting  the  debt 
from  the  principal  in  the  first  instance,  instead  of  pressing  the  surety 
and  turning  him  round  to  the  principal.  And  when  the  form  of  the 
agreements  will  admit  of  its  being  collected  from  the  principal,  per- 
haps no  court  will  interfere  to  throw  it  on  the  surety  in  the  first  in- 
stance. The  authority  of  those  cases  would  determine  the  same 
point  in  this  case. 

Towards  the  conclusion  of  his  charge,  the  Judge  comes  to  this 
opinion.  "  The  case  as  a  matter  of  fairness  depends  upon  this," 
says  he,  "  was  the  object  of  the  acquiescence  and  waiving  protec- 
tion from  the  execution,  to  give  a  preference  to  particular  creditors, 
who  were  the  indorsers  of  Bosler  fy  Co. ;  or  was  it  the  intent  to  get 
the  control  of  the  judgment,  in  order  that  the  proceeds  of  the  per- 
sonal property  might  be  applied  at  the  option  of  the  defendants,  to 
secure  any  creditors  they  pleased  1  If  the  former  was  their  object, 
and  it  is  clearly  made  out,  I  should  be  disposed  to  think  the  de- 
fendants would  be  entitled  to  the  money.  If  the  latter,  it  appears 
to  me  the  most  dangerous  effects  would  result  from  allowing  it  to 
pass  without  censure."  And  then  again  he  says,  "  if  the  acqui- 
escence on  the  part  of  Bosler  <$•  Co.  be  considered  by  the  jury  as  a 
fraudulent  acquiescence,  the  verdict  will  be  for  the  plaintiff;  and 
such  will  be  your  verdict,  if  you  deem  there  was  no  acquiescence  at 
all." 

One  of  the  alternatives  in  this,  to  wit,  "  was  it  the  intention  to 
get  the  control  of  the  judgment  in  order  that  the  proceeds  of  the 
personal  property  might  be  applied  at  the  option  of  the  defendants 
to  secure  any  creditors  they  pleased,"  could  not,  I  apprehend,  be 
fairly  put  to  the  jury  ;  for  if  the  Bank  of  Pittsburgh,  or  the  indorsers 
in  that  bank,  took  out  an  execution  and  levied  on  Bosler  fy  Co.'s 
property  and  sold  it,  the  debt  of  that  bank  was  so  far  extinguished  ; 
if  the  bank  permitted  the  proceeds  of  sale  to  be  lost  in  the  sheriff's 


142  SUPREME  COURT  [Pittsburgh, 

[Stewart  v.  Stocker.] 

hands,  or  permitted  the  sheriff  to  pay  it  to  any  person  who  had  not  a 
prior  levy,  it  would  not  alter  the  case ;  not  even  if  this  was  done  at 
the  instance  of  Bosler  fy  Co.,  if  any  other  judgment  creditor  of 
Bosler  fy  Co.  objected.  A  judgment  creditor  who  has  sold  hid 
debtor's  property,  is  satisfied  in  law,  to  the  amount  of  the  sale,  if  his 
sale  is  not  set  aside  ;  he  never  can  demand  that  money,  nor  keep  his 
judgment  alive  as  to  that  money,  as  against  other  creditors.  I  do 
not  see  how  it  can  then  be  left  to  a  jury  to  decide,  that  the  bank, 
which  levied  and  sold  and  is  claiming  the  proceeds,  does  not  intend, 
and  never  intended  to  take  the  money ;  after  it  has  got  the  money, 
it  may  give  it  away  or  throw  it  in  the  river ;  its  debt  is  discharged, 
and  the  court  and  other  creditors  have  nothing  to  do  with  the  money 
after  that.  It  seems  to  me,  however,  that  where  a  creditor,  who 
has  taken  execution  on  a  fair  and  legal  judgment  and  levied  his 
money,  and  the  sheriff  brings  it  into  court,  cannot  be  deprived  of  it 
by  leaving  it  to  a  jury  to  inquire  whether  he  intends  to  make  a  good 
or  bad,  a  probable  or  an  impossible  use  of  his  proceedings  and  the 
money  raised  by  the  law  for  him. 

The  last  proposition  by  the  judge,  is  still  more  objectionable,  it  is, 
that  "your  verdict  will  be  for  the  plaintiff,  Stocker,  if  you  deem  there 
is  no  acquiescence  at  all ;"  that  is,  no  acquiescence  by  Bosler  fy  Co. 
Now,  acquiescence,  in  this  case,  means,  and  must  mean,  no  opposi- 
tion. When  a  man's  property  is  levied  on  and  sold,  and  the  money 
brought  into  court,  and  he  makes  no  opposition,  no  objection,  .and  no 
application  to  the  court,  he  acquiesces ;  and  if  this  state  of  things 
continues  for  years,  and  he  whose  property  was  sold,  neither  acts  nor 
speaks  in  opposition  to  the  proceedings,  it  is  out  of  the  question  to 
leave  it  to  a  jury  to  decide,  whether  he  acquiesces  or  not.  If,  how- 
ever, the  word  acquiesce,  in  the  hurry  and  inadvertence  of  the  trial, 
was  used  instead  of  the  word  "  assent,"  it  will  not  mend  the  matter. 
After  a  silence,  a  want  of  objection  or  interference  from  1823,  an 
assent  is  to  be  presumed,  or  the  length  of  time  and  change  of  cir- 
cumstances will  preclude  them  from  expressing  a  dissent  now,  and 
it  must  be  taken  that  they  did  not  disagree,  that  they  acquiesced  at 
the  time. 

Judgment  reversed  and  a  venire  facias  de  novo  awarded. 


Sept.  1832.]  OF  PENNSYLVANIA.  143 


Erie  Bank  against  Gibson  et  al. 

The  neglect  of  an  obligee  or  payee  to  sue  the  principal  when,  requested  by  the 
surety,  will  not  discharge  such  surety  from  his  obligation,  unless  the  request  be  ac- 
companied by  an  explicit  declaration  by  the  surety,  that  if  suit  be  not  brought,  he 
will  consider  himself  discharged. 

WRIT  of  error  to  Crawford  county. 

This  was  an  action  of  debt  on  a  note  by  the  Erie  Bank  against 
John  Gibson,  William  Foster  and  William  Magaw.  After  the  note 
became  due,  William  Foster  wrote  to  the  bank  thus : 

"Meadville,  October  1 5th,  1829. 

"  Mr  Rufus  S.  Reed, 

"  Some  weeks  ago  Mr  Magaw  received  a  letter  from  Mr  M. 
Sparren,  giving  a  statement  of  the  amount  due  the  Erie  Bank  on  the 
note  of  John  Gibson,  for  which  he  and  myself  are  security.  We 
have"  used  every  endeavour  to  get  Gibson  to  pay  it  off,  but  without 
effect,  unless  he  has  done  it  lately.  We  have  not  seen  him  for  a 
week  or  two,  as  he  now  lives  at  Coneaut  lake.  I  saw  Mr  Magaw 
yesterday,  and  he  desired  that  I  should  write  to  you  on  the  subject. 
We  see  no  way  of  securing  ourselves  from  Gibson,  unless  suit  be 
brought  against  all  of  us,  and  when  judgment  is  obtained  we  will 
direct  the  sheriff  to  make  as  much  of  the  money  from  him  as  we 
can  ;  the  balance  we  will  of  course  have  to  pay.  If  any  other  course 
is  pursued,  we  would  lose  the  whole  of  it.  The  money  originally 
was  certainly  for  Gibson's  use." 

To  which  the  cashier  of  the  bank  replied  thus : 

"  Erie  Bank,  2d  November  1829. 

"  Mr  William  Foster, 

"  Dear  sir, — Mr  Reed  put  into  my  hands  yours  of  the  15th  ultimo, 
wherein  you  say  you  see  no  way  of  securing  yourselves  from  John 
Gibson,  unless  suit  be  brought  against  all  of  you ;  but,  my  dear  sir, 
when  you  put  your  name,  as  well  as  Mr  Magaw,  to  that  paper,  you 
knew,  or  ought  to  have  known  what  you  were  doing.  We  did  not 
lend  the  money  with  the  expectation  of  bringing  suit ;  and  when 
your  and  Magaw's  names  were  to  the  note,  we  felt  satisfied  you 
would  not  suffer  a  suit,  nor  dreamed  of  such  means  to  get  the  money 
back.  I  hope  you  will  see  this  in  its  proper  light,  and  pay  as  fast  as 
possible ;  say  send  us  the  half  now,  and  the  other  half  in  sixty  days." 

The  following  testimony  was  given  by  /.  S.  Riddle,  Esq. 


144  SUPREME  COURT  [Pittsburgh, 

[Erie  Bank  v.  Gibson  et  al.] 

"Some  time  about  the  1st  of  March  1830,  Mr  Hamot  was  in 
Meadville,  and  requested  me  to  take  the  note  in  suit  for  collection. 
I  told  him  I  wished  first  to  see  Magaw  on  the  subject.  I  accordingly 
called  on  Mr  J\fagawt  and  told  him  I  had  been  requested  to  collect 
the  note  ;  and  asked  him  if  he  meant  to  contest  it.  He  replied  that 
he  supposed  they  were  bound,  and  must  pay  it.  I  observed  to  him 
that  if  there  was  to  be  any  controversy  about  it,  I  did  not  wish  to  be 
concerned  against  him.  He  gave  me  to  understand  that  he  would 
not  go  to  the  additional  expense  of  litigating  it.  I  then  asked  him 
if  he  had  any  objection  to  my  taking  the  note  for  collection,  and  he 
said  he  had  not.  I  then  went  back  to  Mr  Hamot  and  gave  him  my 
receipt  for  the  note  for  collection. 

"  On  the  same  day,  or  a  few  days  afterwards,  I  saw  Mr  Foster  in 
town,  and  mentioned  to  him  that  the  note  had  been  left  with  me. 
He  complained  of  the  conduct  of  John  Gibson  in  not  having  paid  the 
note,  but  added  there  was  no  necessity  of  having  a  suit  about  it. 
It  was  proposed  that  a  judgment  bond  should  be  given  by  him,  Gib- 
son and  Magawy  and  he  agreed  that  I  should  draw  one,  which  he 
would  sign,  and  leave  with  me  to  get  the  signatures  of  Gibson  and 
Magaw.  Before  1  had  time  to  go  to  my  office  to  draw  one,  he  told 
me  he  was  desirous  of  going  out  home,  but  would  be  in  town  in  a 
few  days  again,  and  would  then  sign  the  bond,  and  that  in  the 
mean  time  I  might  have  an  opportunity  of  seeing  Gibson  in  town, 
and  of  getting  his  name  to  it. 

"  At  this  time  he  did  not  allege  that  there  had  been  negligence  on 
the  part  of  the  bank  in  bringing  suit,  nor  that  he  considered  himself 
exonerated,  until  he  came  to  town  again  some  days  afterwards.  He 
then  declined  giving  judgment,  alleging  that  the  bank  should  have 
proceeded  earlier.  The  suit  was  brought  to  the  then  next  term." 

The  court  were  requested  to  instruct  the  jury  upon  the  following 
points. 

1.  That  the  mere  omission  by  a  creditor  to  bring  suit  against  the 
principal  debtor  does  not  discharge  the  surety. 

2.  That  the  letter  of  William  Foster  to  Mr  Reed  did  not  contain 
that  positive  request  to  bring  suit,  and  was  not  accompanied  by  any 
such  declaration  that  otherwise  the  sureties  would  consider  them- 
selves discharged,  which  was  necessary  in  law  to  exonerate  them. 

3.  That  if  John  Gibson  was  insolvent  at  the  time  the  letter  was 
written,  the  bank  was  under  no  obligations  to  proceed  against  him. 

The  court  below  was  of  opinion,  that  the  omission  of  the  bank  to 
sue  the  principal,  as  requested  by  the  letter  of  William  .Foster,  one  of 
the  sureties,  was  a  good  defence  against  the  plaintiff's  action,  and  so 
instructed  the  jury,  who  found  a  verdict  for  the  defendant.  And  the 
opinion  was  assigned  for  error. 

J.  S.  Riddle,  for  plaintiff  in  error. 

It  is  a  conceded  and  well  settled  principle,  that  the  mere  delay  of 
the  creditor  to  sue  the  principal  debtor  does  not  exonerate  the  surety, 


Sept.  1832.]  OF  PENNSYLVANIA.  145 

[Erie  Bank  v.  Gibson  et  al.J 

unless  there  is  an  express  agreement  to  give  time,  or  the  terms  of 
the  contract  are  varied,  or  unless  the  delay  has  been  unreasonable. 
Hunt  v.  The  United  States,  I  Gallis.  34,  35;  Fulton  v.  Matthews,  15 
Johns.  433;  Comwith  v.  Wolbert,  5  Binn.  295,  300;  Thursby  v.  Gray, 
4  Yeates  518. 

If  the  surety  wishes  to  be  freed  from  his  liability,  he  must  make 
an  explicit  request  to  the  creditor  to  proceed,  and  at  the  same  time 
give  him  notice  that  unless  he  does  so,  any  further  indulgence 
will  be  at  his  own  peril.  In  those  states  where  they  have  courts  of 
chancery,  the  correct  course  of  procedure  would  seem  to  be,  to  file 
a  bill  in  equity,  to  compel  the  creditor  to  bring  suit,  or  be  enjoined 
from  proceeding  against  the  surety  afterwards.  But  in  Pennsyl- 
sylvania,  where  we  have  no  court  of  chancery,  a  demand  inpais  is 
held  to  be  sufficient.  As,  however,  it  comes  in  lieu  of  a  bill  in 
equity,  it  should  be  equally  specific  in  all  material  particulars.  It 
should  clearly  apprise  the  creditor  of  what  was  required  of  him  and 
warn  him  of  the  consequences  of  neglecting  such  notice.  Cope  v. 
Smith,  8  Serg.  fy  Rawle  116. 

In  the  present  case,  the  letter  of  Mr  Foster  did  not  give  the  ex- 
plicit notice  to  which  we  were  entitled,  and  it  does  not  contain  the 
slightest  intimation,  that  if  we  did  not  proceed  they  would  no 
longer  be  accountable.  He  writes,  "we  see  no  way  of  saving  our- 
selves, unless  suit  be  brought,  &c."  He  does  not  insist  on  it,  nor  does 
he  expressly  require  it ;  he  suggests,  it  is  true,  that  it  would  be  most 
expedient  for  the  sureties,  but  does  not  tell  us,  that  unless  we  adopted 
this  suggestion  we  must  no  longer  look  to  them.  And,  if  such  had 
been  the  meaning  he  intended  to  convey,  it  is  evident  it  was  not  so 
understood.  The  reply  of  Mr  Harriot,  the  cashier  of  the  bank,  shows 
the  way  in  which  he  viewed  it.  He  does  not  refuse  to  sue,  but 
says,  "  we  did  not  expect  to  be  obliged  to  bring  suit,  had  hoped  not 
to  be  driven  to  that  alternative,  and  that  defendants  would  see  the 
matter  in  its  proper  light  and  pay,  &c."  But  suppose  he  had  been 
told  by  the  sureties,  that  unless  suit  was  instituted,  they  would  be 
no  longer  held — he  would  then  have  been  put  upon  his  guard,  and 
the  presumption  is  fair,  that  as  a  vigilant  officer  of  the  bank,  he 
would  immediately  have  directed  suit  to  be  brought.  It  is  apparent 
then,  that  the  defendants  were  not  so  understood.  Did  they  intend 
to  convey  any  such  meaning'?  Magaw  did  not  mean  to  contest  it. 
When  Mr  Foster  was  called  on  first,  he  made  no  allegation  that  the 
bank  was  in  default,  he  agreed  to  give  his  judgment  bond  for  the 
debt,  he  requested  that  process  might  not  be  issued,  and  the  reason 
the  bond  was  not  executed,  was  that  he  was  anxious  to  go  out 
home  before  there  was  time  to  prepare  one.  Had  he  intended  then 
that  his  letter  should  discharge  him,  he  would  at  once  have  said,  the 
bank  has  been  dilatory,  you  neglected  to  sue  when  called  upon,  and 
now  we  are  no  longer  liable.  But  nothing  of  this  kind  was  alleged, 
and  if  they  themselves  did  not  intend  to  convey  such  meaning, 
would  it  "not  be  unreasonable  to  require  us  so  to  understand  them  ] 
T 


146  SUPREME  COURT  [Pittsburgh, 

[Erie  Bank  v.  Gibson  ot  al.] 

The  doctrine  in  Cope  v.  Smith,  has  been  fully  recognized  in  Gard- 
ner v.  Ferrer,  15  Serg.  fy  Rawle  28,  30,  in  which  a  check  is  put 
upon  these  constructive  equities,  which  had  been  carried  to  such 
extremes.  In  this  case,  too,  the  defence  was  put  upon  the  ground, 
that  the  money  might  have  been  obtained  from  the  principal ;  but 
that  does  not  alter  the  rule. 

The  law  knows  no  intention  between  principal  and  surety,  they 
are  both  bound  to  the  true  interest  of  the  instrument.  Roth  v. 
Miller,  15  Serg.  fy  Rawle  100,  107.  And  it  would  be  error  to  leave 
the  construction  of  writings  to  the  jury. 

Foster  and  Wallace,  for  defendants  in  error,  cited,  13  Serg.  fy 
Rawle  159  ;  Eddowes  v.  Niell,  4  Doll.  144 ;  Cope  v.  Smith,  8  Serg. 
4*  Rawle  110;  Pain  v.  Packard,  13  Johns.  174  ;  Fulton  v.  Matthews, 
15  Johns.  433  ;  King  v.  Baldwin,  17  Johns.  384 ;  Walker  v.  Bank,  12 
Serg.  $  Rawle  382  ;  Bank  v.  Walker,  9  Serg.  fy  Rawle  229. 

The  opinion  of  the  Court  was  delivered  by 

ROGERS,  J. — In  Cope  v.  Smith,  8  Serg.  fy  Rawle  11.0,  Chief  Jus- 
tice Tilghman  investigated  with  great  care  all  the  authorities  which 
bear  upon  the  present  question.  In  England,  the  surety  must  go 
into  chancery,  to  compel  the  creditor  to  sue,  or  perhaps  the  principal 
to  pay,  but  in  New  York  the  same  result  may  be  produced  by  a  re- 
quest in  pais.  This  position  is  sustained  by  the  court  of  errors,  con- 
trary to  the  opinion  of  all  the  law  judges,  except  Chief  Justice  /Spen- 
cer. The  law  was  at  one  time  supposed  to  be  otherwise  in  Pennsyl- 
vania. In  the  Commonwealth  v.  Wolbert,  Justice  Yeatess&ys,  "a  bill 
will  lie  in  chancery,  by  a  surety  to  compel  a  creditor  to  sue  his  prin- 
cipal ;  and  equity  will  act  on  the  refusal,  or  neglect  to  sue,  particu- 
larly when  the  condition  of  the  surety  is  thereby  deteriorated.  The 
surety  has  no  such  remedy  here,  he  must  pay  the  money  on  the 
bond,  and  take  an  assignment.  Should  he  demand  a  suit  against 
the  principal,  I  should  hold  him  bound  to  tender  an  indemnification." 
But  in  Cope  v.  Smith,  the  court  came  to  a  different  conclusion,  by 
dispensing  with  the  necessity  of  an  actual  payment  of  the  money  by 
the  surety.  In  that  case,  the  attention  of  the  chief  justice,  who  de- 
livered the  opinion  of  the  court,  was  directed  to  the  rule  most  proper 
under  the  peculiar  circumstances  of  the  jurisprudence  of  this  state. 
The  result  was,  that  a  medium  course  was  adopted,  not  so  lax  as 
the  rule  finally  settled  in  New  York,  and  that  with  me,  is  no  slight 
recommendation.  In  Cope  v.  Smith,  it  was  held,  that  the  mere  omiss- 
ion by  a  creditor  to  bring  suit  against  the  principal  debtor,  does  not 
discharge  the  surety  ;  but  that  if  a  creditor,  after  being  requested  to 
bring  suit  against  the  principal  debtor,  refuse,  or  neglect  to  do  so, 
the  surety  is  discharged  ;  but  the  rule  then  laid  down,  has  this  im- 
portant qualification,  provided  the  request  be  proved  clearly,  and  be- 
yond all  doubt;  and  provided, it  be  accompanied  with  a  positive,  expli- 
cit declaration,  that  unless  the  request  be  complied  with,  the  surety 


Sept.  1832.]  OF  PENNSYLVANIA.  147 

>  [Erie  Bank  v.  Gibson  et  al.] 

will  be  considered  discharged.  I  am  reconciled  to  the  rule,  by  the 
fact  that  we  have  no  court  of  chancery ;  for  if  we  had  one,  I  would 
compel  the  surety  to  seek  his  remedy  there.  No  request  or  demand 
inpais,  however  solemn,  and  accompanied  with  whatever  declara- 
tion, should  discharge  the  surety  from  his  responsibility.  In  laying 
down  the  rule  for  the  government  of  suitors,  the  court  thought  pro- 
per to  guard  the  exercise  of  the  right  with  these  restrictions  and  limi- 
tations, and  these  I  do  not  feel  inclined  to  disregard.  A  clear,  distinct 
declaration,  that  unless  the  request  of  the  surety  to  sue  principal  is 
complied  with,  he  will  consider  himself  discharged,  seems  to  put  the 
creditor  on  his  guard.  It  evinces  a  determination  on  his  part  to  .ex- 
onerate himself  from  liability.  It  is  then  at  the  peril  of  the  creditor, 
either  to  neglect  or  refuse  to  comply  with  the  request ;  nor  is  this 
any  hardship,  as,  according  to  the  case  of  the  Commonwealth  v.  Wol- 
bert,  he  may  require  an  indemnity ;  or  according  to  Gardner  v.  Ferrer, 
he  may  offer  the  surety  the  right  to  bring  suit  in  his  name.  That 
the  court  have  heretofore  been  understood  as  establishing  this  rule, 
as  I  have  stated  it,  appears  from  Gardners.  Ferrer,  \5Serg.  fy  Rawle 
28.  It  has  undergone  repeated  discussions  in  this  court.  The 
chief  justice  says,  in  the  case  referred  to,  "I  would  be  unwilling," 
(and  in  this  I  agreed  with  him  at  the  time,  and  do  so  yet)  "  in 
cases  of  this  sort,  to  go  beyond  the  rule,  in  Cope  v.  Smith,  8  Serg.  fy 
Rawle  110,  that  the  surety  shall  be  exonerated  only  when  the 
obligee  has  refused  to  bring  suit,  or,  (what  I  take  to  be  the  same 
thing)  to  suffer  the  surety  to  do  it  in  his  name,  after  a  positive  re- 
quest, and  explicit  declaration  by  the  surety  that  he  would  otherwise 
hold  himself  discharged." 

After  two  such  recognitions  of  the  rule,  there  should  be  some 
stronger  reason  than  has  been  given  for  a  change.  It  is  not  suffi- 
cient to  show  that  in  New  York  it  has  been  decided  differently,  in 
opposition  to  the  opinion  of  the  legal  talent  of  the  supreme  court  of 
that  state,  (the  chief  justice  excepted)  and  also  plainly  to  the  rule 
established  in  England.  The  rule,  as  settled  here,  carries  with  it 
this  powerful  recommendation.  It  is  explicit,  and  of  course  easily 
understood,  and  is  eminently  calculated  to  prevent  surprise.  If  any 
exception  can  be  taken  to  it,  it  is  that  the  court  did  not  authorita 
tively  require  that  the  notice  should  be  in  writing.  The  letter  of 
Mr  Foster  contains  a  request,  sufficiently  explicit  to  come  within 
the  meaning  of  Cope  v.  Smith,  to  bring  suit  against  the  principal ; 
but  there  is  no  intimation,  that  unless  suit  was  brought,  *Magaw 
and  he  would  consider  themselves  discharged.  It  is  true,  they 
allege  that  to  be  the  only  means  of  securing  themselves  ;  but  that  is 
not  sufficient.  In  the  answer  of  the  cashier,  he  declines  complying 
with  the  request,  and  says,  with  great  reason,  as  I  think,  that  the 
bank  did  not  lend  the  money  with  the  expectation  of  bringing  suit, 
and  when  they,  Foster  and  Magaufs  names,  were  to  the  note,  the 
bank  felt  satisfied,  they  would  not  suffer  a  suit,  nor  did  they  dream 
of  such  a  means  of  getting  rid  of  paying  the  money.  He  adds,  I 


148  SUPREME  COURT  [Pittsburgh, 

[Erie  Bank  v.  Gibson  et  al.] 

hope  you  will  see  this  in  its  proper  light,  and  pay,  as  fast  as  possible; 
say,  send  us  the  half  now,  and  the  other  half  in  sixty  days.  It  is 
evident  that  the  bank  had  no  intention  to  discharge  the  security,  nor 
idea  that  this  would  be  the  legal  effect  of  their  refusal;  nor  could 
they  suppose  so,  if  they  were  aware,  as  they  are  presumed  to  be,  of 
the  case  of  Cope  v.  Smith.  To  this  letter  they  received  no  reply.  If 
the  sureties  intended  to  insist  on  a  suit,  at  the  risk  of  the  creditor  of 
discharging  them  from  liability,  their  course  was  plain.  They 
should  then  have  put  the  bank  on  their  guard,  by  demanding  it  as  a 
right,  under  the  penalty  which  would  result  from  a  refusal.  To  dis- 
charge them,  without  this,  is  evidently  taking  the  bank  by  surprise, 
and  this  it  is  the  object  of  the  rule  to  prevent.  In  truth,  this  case  is 
a  strong  illustration  of  the  wisdom  of  the  rule.  The  creditor  has 
rights  as  well  as  the  surety,  and  this  it  ought  to  be  the  object  of  all 
well  regulated  societies  to  guard.  There  is  a  danger  in  impairing 
securities  of  this  kind.  At  least  creditors  are  entitled  to  a  fair  pro- 
tection, not  only  as  against  the  principal,  but  his  sureties.  It  is  fre- 
quently on  the  faith  of  the  latter  that  the  creditor  relies,  without 
which  the  loan  would  not  be  afforded.  As  the  bank  had  no  idea, 
neither  had  Foster  and  Magaw,  that  the  liability  had  ceased,  and 
this  appears  beyond  question,  in  the  testimony  of  Mr  Riddle.  As 
late  as  the  1st  of  March  1830,  Mr  Riddle  called  on  Magaw,  and  told 
him  he  had  been  requested  to  collect  the  note,  and  asked  him  if 
he  meant  to  contest  it.  He  replied,  he  supposed  they  were  bound, 
and  must  pay  it.  He  did  not  wish  to  go  to  the  additional  expense 
of  litigating  it.  Mr  Riddle  afterwards  spoke  to  Mr  Foster  about  it. 
Mr  Foster  complained  of  the  conduct  of  Gibson,  but  added,  there 
was  no  necessity  of  any  suit  about  it.  It  was  agreed  that  Gibson, 
Foster  and  Magaw  should  give  a  judgment  bond  for  the  money. 
At  that  time  they  did  not  allege  that  the  bank  had  been  guilty  of 
negligence,  nor  that  they  considered  themselves  exonerated.  Some 
days  afterwards  Foster  declined  giving  a  judgment,  saying,  that  the 
bank  should  have  proceeded  earlier.  If  Magaw  and  Foster  should 
succeed  in  the  defence,  it  will  be  a  confirmation  of  the  truth  of  the 
observation  of  Chief  Justice  Gibson  in  Gordon  v.  Ferrer,  "  that 
courts  of  equity  have  gone  to  an  extreme  in  favour  of  sureties,  often 
granting  relief  for  a  constructive  equity,  the  existence  of  which  the 
surety  did  not  even  suspect." 

The  counsel  for  the  defendant  in  error  say,  it  is  against  equity  for 
a  creditor  to  refuse  to  bring  suit  against  the  principal.  However 
true  this  may  be  as  a  general  proposition,  I  doubt  its  truth  here.  It 
seems  to  me  it  would  have  been  against  equity,  because  contrary  to 
their  engagement,  for  the  sureties  to  have  insisted  on  the  bank's 
bringing  suit  against  Gibson.  It  is  very  well  known  that  the  bank 
looks  to  the  payment  of  money  loaned,  at  the  maturity  of  the  bill. 
That  is  a  course  of  dealing  which  is  absolutely  necessary  to  their 
prosperity,  and  with  which  their  customers  are,  or  are  supposed  to 
be,  well  acquainted.  There  was,  therefore,  a  propriety  in  the  an- 


Sept.  1832.]  OF  PENNSYLVANIA.  149 

[Erie  Bank  v.  Gibson  et  al.] 

swer  of  the  cashier  of  the  bank,  which  is  in  conformity  to  the  ordi- 
nary course  of  mercantile  dealing.  If  this  had  been  a  note  drawn 
in  the  ordinary  form,  there  would  be  no  doubt  of  this,  but,  in  sub- 
stance, the  contract  is  the  same,  and  was  so  understood,  by  at  least 
one  of  the  parties,  to  which  the  other  did  not  dissent.  The  only 
difference  is,  that  instead  of  drawing  the  notes  payable  to  order, 
and  indorsing  them  in  the  ordinary  form,  the  sureties  sign  their 
names  to  the  note  itself,  in  which  they  promise  to  pay.  Although 
this  note  may  not  have  been  strictly  negotiable,  (and  whether  it  was 
or  not  we  cannot  say,  it  not  being  produced)  it  partakes  of  that  cha- 
racter, so  far  as  regards  this  question. 
Judgment  reversed,  and  a  venire  de  novo  awarded. 


Owens  against  Dawson. 

In  an  action  of  assumpsit,  a  bill  in  chancery  cannot  be  given  in  evidence  as  an 
admission  of  facts  against  the  complainant  himself,  except  in  the  case  of  pedigree, 
and  not  then,  unless  the  -party  claims  or  derives  title  in  some  manner  under  the 
plaintiff  or  defendant  in  the  chancery  suit. 

ERROR  to  Fayette  county. 

This  was  an  action  of  assumpsit  by  Joshua  Dawson  against  Vincent 
Owens,  for  money  had  and  received,  and  for  goods  sold  and  delivered. 
Pleas,  non  assumpsit,  and  payment  with  leave,  &c. 

It  appeared  that  a  certain  John  Lang  had  been  indebted,  by  note, 
to  Dawson,  in  the  sum  of  450  dollars  ;  that  Dawson  had  given  Owens 
an  order  on  Lang  for  300  dollars,  which  was  to  be  a  credit  on  Lang's 
note,  which  was  then  delivered  to  Owens.  Owens  received  from 
Lang,  on  the  order,  177  dollars  and  79  cents,  and  afterwards  re- 
covered against  him  60  dollars.  It  was  alleged  by  Dawson  that  the 
whole  amount  of  the  order  was  not  owing  by  him  to  Owens  ;  and  to 
prove  the  issue  on  his  part,  the  plaintiff  below  offered  in  evidence  a 
bill  in  chancery,  filed  in  the  superior  court  of  chancery  in  Winches- 
ter, Virginia,  by  John  Gordon  and  Frederick  Light,  against  Joshua  Daw- 
son,  Vincent  Owens  and  John  Lang.  The  defendant  objected  to  the 
reading  of  the  said  bill.  The  court  admitted  the  evidence ;  and  the 
defendant  excepted. 

In  the  proceedings  in  chancery,  the  subpoena  was  served  on  Lang, 
and  on  William  or  Vincent  Owens.  Lang  alone  answers.  The  de- 
cree, and  the  rest  of  the  record,  excepting  the  bill,  was  admitted  by 
consent,  or,  all  the  facts  stated  in  it  were  admitted.  The  bill  alleges 
the  receipt  of  100  dollars  by  Owens,  from  Lang,  "  which  sum  of  100 
dollars,  the  plaintiffs  believe,  is  as  much  as  said  Owens  is  entitled  to." 

The  admission  of  the  bill  in  chancery  was  the  only  error  assigned. 


150  SUPREME  COURT  [Pittsburgh, 

[Owen*  v.  Dawson.] 

JV.  Ewmg,  for  plaintiff  in  error,  cited,  Starkie's  Ev.  286 ;  2  Selw. 
JV.  P.  211;  1  P/uJ.  Et>.  263. 

•Austin,  for  defendant  in  error,  cited,  PAi/.  £».  282. 

The  opinion  of  the  Court  was  delivered  by 

ROGERS,  J. — This  was  an  action  of  assumpsity  for  money  had  and 
received  for  goods  sold  and  delivered.  Pleas,  non  assumpsit,  and 
payment  with  leave,  &c. 

The  case  was  this.  John  Lang  was  indebted  to  Dawson  450  dol- 
lars. Dawson  gave  Owens  an  order  on  Lang  for  300  dollars,  which 
was  to  be  a  credit  on  Lang's  note,  which  was  delivered  to  Owens. 
Owens  received  from  Lang-,  on  the  order,  177  dollars,  and  afterwards 
recovered  from  him  60  dollars.  It  was  alleged  by  Dawson  that  the 
whole  amount  of  the  order  was  not  owing  by  him  to  Owens,  and  for 
the  difference  this  suit  was  brought.  To  prove  the  issue,  on  his 
part,  the  plaintiff  offered  in  evidence  a  bill  in  chancery,  filed  in  the 
superior  court  of  chancery  in  Winchester,  Virginia,  by  John  Gordon 
and  Frederick  Light  against  Joshua  Dawson,  Vincent  Owens  and  John 
Lang.  The  defendant  objected  to  the  reading  of  the  bill,  but  thje 
court  admitted  the  evidence,  and  the  defendant  excepted.  The  ad- 
mission of  the  evidence  is  the  only  error  assigned.  It  must  also  be 
stated,  as  part  of  the  case,  that  the  subpoena,  in  chancery,  was  served 
on  Lang,  and  on  either  Vincent  or  William  Owens,  but  not  on  Daw- 
son.  Lang  alone  made  answer.  The  decree,  and  the  rest  of  the 
record,  excepting  the  bill,  was  admitted  by  consent,  and  all  the  facts 
stated  in  it  admitted.  The  bill  alleges  the  receipt  of  100  dollars  by 
Owens  from  Lang.  In  this  there  was  error.  Answers  in  chan- 
cery, which  are  confessions,  are  strong  evidence  against  the  party 
who  makes  them.  But  a  bill  in  chancery  wherein  many  of  the 
facts  are  the  mere  suggestions  of  counsel,  made  for  the  purpose  of 
extorting  an  answer  from  the  defendant,  will  not  be  in  evidence,  ex- 
cept to  show  that  such  a  bill  did  exist,  and  that  certain  facts  were  in 
issue  between  the  parties,  in  order  to  introduce  the  answer,  or  the 
deposition  of  witnesses.  It  is  not  admitted  in  courts  of  law,  as  evi- 
dence, to  know  any  fact  either  alleged  or  denied  in  the  bill.  Lord 
Kenyan  is  reported  to  have  admitted  a  bill  in  chancery,  filed  by  an 
ancestor,  to  be  evidence  of  a  pedigree  there  stated,  as  a  declaration 
in  the  family.  But  it  was  resolved  by  the  judges,  in  the  Banbury 
Peerage  case,  on  a  question  put  to  them  by  the  house  of  lords,  that  a 
bill  in  equity,  or  depositions,  cannot  be  received  in  evidence  in  the 
courts  of  common  law,  on  the  trial  of  an  ejectment  against  a  party 
not  claiming  or  deriving  title  in  any  manner  under  the  plaintiff  or 
defendant  in  the  chancery  suit,  either  as  evidence  of  the  facts  therein 
deposed,  or  as  declarations  respecting  pedigree.  The  law  seems, 
therefore,  to  be  now  settled,  that  a  bill  in  chancery  cannot  be  given 
in  evidence  as  an  admission  of  facts  against  the  complainant  himself, 
except  in  the  case  of  pedigree,  and  not  even  then,  except  as  a  party 


Sept.  1832. J  OF  PENNSYLVANIA.  151 

[Owens  v.  Dawson.] 

who  claims  or  derives  title  in  some  manner  under  the  plaintiff  or 
defendant  in  the  chancery  suit. 

The  bill  was  not  offered  to  prove  pedigree,  but  the  fact  that  Owens 
had  received  one  hundred  dollars  from  Lang  ;  and  if  the  bill  would 
not,  as  we  have  shown,  have  been  evidence  against  the  complainants, 
it  is  difficult  to  conceive  in  what  way  it  can  be  made  evidence,  for  that 
purpose,  against  Owens  in  favour  of  Dawson.  It  must  be  remarked, 
that  the  subpoena  was  served  on  Lang,  and  on  either  Vincent  or  Wil- 
liam Owens,  but  Lang  alone  answers.  It  was  not  served  on  Dawson ; 
so  that  the  only  person  who  can  be  said  to  have  admitted  the  facts, 
was  Lang.  This,  therefore,  was  res  inter  alias  acta,  and  not  admissi- 
ble as  evidence,  either  for  or  against  either  Dawson  or  Owens.  A 
decree  in  chancery  may  be  given  in  evidence  on  the  same  footing, 
and  under  the  same  limitations,  as  the  verdict  and  judgment  of  a 
court  of  common  law.  If  this,  then,  had  been  a  suit  by  Gordon  and 
Light  against  Dawson,  Owens  and  Lang*  a  judgment  against  Dawson 
and  Lang  would  not  be  evidence  in  a  suit  between  Dawson  and 
Owens.  The  fact  that  the  rest  of  the  record,  excepting  the  bill,  was 
admitted  by  consent,  and  all  the  facts  stated  in  it  admitted,  does  not 
alter  the  case.  We  have  no  right  to  extend  the  case  beyond  the 
agreement  of  the  parties.  It  is  true  that,  according  to  the  course  of 
the  chancery  practice,  there  was  a  decree  against  all  the  defendants, 
although  it  was  Vincent  Owens  that  was  served  with  notice  of  the 
bill,  and  it  was  certain  that  Dawson  was  not.  This  proceeding  in 
chancery  was  in  rem,  and  not  in  personam.  The  right  to  appear  and 
show  cause  against  the  decree  is  reserved  to  the  absent  defendant. 

We  cannot  think  that  the  allegations  in  the  bill  ought  to  be  given 
against  either  of  the  defendants,  by  the  other,  in  a  suit  between  them, 
as  it  is  uncertain  whether  either  had  notice  of  even  the  filing  of  the 
bill,  and  can  not  be  supposed,  except  as  between  the  complainant  and 
them,  to  have  admitted  the  truth  of  them.  If  John  Lang  paid  the 
sum  alleged  in  the  bill,  he  was  a  competent  witness  to  prove  the 
fact,  in  a  suit  between  Owens  and  Dawson. 

Judgment  reversed,  and  a  venire  de  novo  awarded. 


152  SUPREME  COURT  [Pittsburgh, 


Reed  against  Dickey. 

A  defendant  in  ejectment  will  not  be  permitted  to  avail  himself  of  a  breach  of 
contract,  in  relation  to  the  land  in  controversy,  by  one  under  whom  he  claims,  in 
order  to  exclude  evidence  which,  if  the  contract  had  been  complied  with,  would 
have  been  competent. 

The  declarations  of  one  under  whom  a  party  in  ejectment  claims  may  be  given  in 
evidence  against  him,  if  such  declarations  were  made  during  the  time  the  witness 
was  the  occupier  of  the  land. 

ARMSTRONG  county. 

William  Reed,  who  survived  Victor  Dupont,  assignees  of  Archibald 
M'Call,  brought  this  ejectment  against  Archibald  Dickey  and  Wil- 
liam Dicke\),  to  recover  the  possession  of  four  hundred  and  twenty 
acres  of  land.  On  the  trial,  the  plaintiff  offered  in  evidence  an 
agreement  of  February  1800,  between  Archibald  M'Call  and  Alex- 
ander Campbell,  to  be  followed  by  proof  that  Campbell  sold  the  land 
to  Templeton,  who  sold  to  Archibald  Dickey,  one  of  the  defendants. 
The  material  part  of  the  agreement  is  this. 

"  Witnesseth,  that  the  said  Alexander,  for  and  in  consideration  of 
the  covenants  hereinafter  mentioned  on  trust  of  the  said  Archibald 
to  be  done  and  performed,  doth  covenant  to  and  with  the  said  Archi- 
bald M'Call,  that  he  now  has  the  only  actual  settlements  on  two 
certain  tracts  of  land,  surveyed  for  the  said  Archibald,  M'Call,  in 
Gapin's  district,  north  and  west  of  the  Alleghany  river,  on  the  heads 
of  Buffaloe,  surveyed  in  the  names  of  John  Pell,  Sen.  and  Nicholas 
Day,  and  that  he  will  continue,  or  cause  to  be  continued,  the  same 
on  the  said  land,  agreeably  to  the  provisions  of  the  act  of  assembly 
of  the  3d  of  April  1792,  for  the  space  of  five  years  from  his  first  set- 
tling the  same,  and  hold  the  same  for  the  said  Archibald  M'Call. 
In  consideration  whereof  the  said  Archibald  M  'Call  doth  covenant 
to  and  with  the  said  Alexander,  that  the  said  Alexander  having  ful- 
filled his  covenants  aforesaid,  he  will  at  the  expiration  of  the  said 
term  convey  and  assure  unto  the  said  Alexander,  or  his  assigns, 
three  hundred  acres  of  the  tract  surveyed  in  the  name  of  John  Pell, 
including  the  improvements  of  the  said  Alexander,  the  same  to  be 
taken  off  the  north  end  of  the  tract,  at  the  expiration  of  the  aforesaid 
term,  and  will  warrant  and  defend  the  same." 

This  evidence  was  objected  to,  on  the  ground  that  the  plaintiff 
must  first  show  that  an  improvement  and  settlement  had  been  made 
by  Campbell,  at  the  date  of  the  said  agreement.  The  court  sustain- 
ed the  objection,  and  the  evidence  was  rejected,  which  was  the  first 
error  alleged. 

The  plaintiff  proposed  to  ask  a  witness,  what  Philip  Templeton, 
who  had  once  owned  the  land,  said  respecting  the  title  to  it,  and  his 


Sept.  1832.]  OF  PENNSYLVANIA.  153 

[Reed  v.  Dickey.] 

knowledge  of  Archibald  M'CaWs  claim ;  which  was  objected  to,  and 
rejected,  which  was  assigned  as  the  second  errors 

Bredin,  for  plaintiff  in  error. 
Blair,  for  defendant  in  error. 

The  opinion  of  the  Court  was  delivered  by 

ROGERS,  J. — In  this  suit,  which  was  an  action  of  ejectment,  the 
plaintiff  offered  in  evidence,  an  article  of  agreement,  dated  the  2d 
of  February  1800,  between  Archibald  M'Call,  under  whom  he 
claims,  and  Alexander  Campbell,  'accompanied  with  an  offer  to  show, 
that  Campbell  sold  to  Philip  Templeton,  who  sold  to  Archibald  Dickey, 
one  of  the  defendants.  The  testimony  was  objected  to,  on  two 
grounds.  First,  that  the  agreement  was  not  duly  proved,  and 
secondly,  that  testimony  ought  previously  to  have  been  given  of  an 
improvement  and  settlement  of  Campbell,  before  and  after  the  date 
of  the  agreement,  according  to  law.  The  court  decided,  that 
the  agreement  was  duly  proved,  but  were  further  of  the  opinion, 
that  such  proof  of  improvement  and  settlement,  ought  first  to  be 
given.  The  exclusion  of  the  testimony  is  one  of  the  errors  assigned. 
The  article  of  agreement  was  the  first  link  in  the  chain  of  title, 
and  contained  a  contract,  which  is  not  uncommon  in  that  section  of 
the  state,  nor  opposed,  that  I  can  perceive,  either  to  the  words  or 
spirit  of  the  act  of  1792.  It  is  material,  to  observe  the  relative  situa- 
tion of  the  parties,  as  contained  in  the  plaintiffs'  offer.  The  plain- 
tiffs offer  to  prove,  that  Campbell  sold  to  Templeton,  who  sold  to 
Dickey,  one  of  the  defendants ;  the  effect  of  which  testimony  is  to 
make  this  a  contest  of  the  same  nature,  as  if  the  original  contracting 
parties  were  now  before  the  court.  Is  it  then  competent  for  Camp- 
bell, or  which  is  the  same  thing,  those  who  claim  under  him,  to  ob- 
ject that  no  settlement  has  been  made  on  the  land  1  or,  in-  other 
words,  can  he  allege  his  own  default,  as  a  reason  for  a  non  com- 
pliance with  the  contract  1  In  the  article  of  agreement,  Campbell 
avers,  that  he  had  made  a  settlement,  and  covenants  that  he  will 
continue  the  same  agreeably  to  the  provisions  of  the  act  of  the  3d  of 
April  1792.  In  consideration  whereof,  M'Call  entered  into  the 
covenant  contained  in  the  article.  Campbell  then  is  estopped  from 
denying  that  a  settlement  was  made  within  the  true  intent  and 
meaning  of  the  act.  He  cannot  be  permitted  to  allege  his  own 
breach  of  contract,  as  a  reason  for  withholding  the  possession  from 
the  plaintiff.  He  stands  in  a  different  situation  from  a  stranger, 
against  whom,  doubtless,  it  would  be  necessary  to  prove  a  previous 
settlement.  Besides,  as  between  these  parties,  there  is  proof  suffi- 
cient to  throw  the  onus  probandi  on  the  defendant.  We  have  the 
acknowledgement  of  Campbell  under  whom  the  defendant  claims, 
that  a  settlement  had  been  made,  and  also  a  covenant  on  his  part  to 
complete  the  title.  As  between  the  parties  to  the  deed,  it  is  of  little 
worth  whether  the  land  was  improved  or  not.  The  plaintiff  is  will- 


154  SUPREME  COURT  [Pittsburgh, 

[Reed  v.  Dickey.] 

ing  to  take  the  title  with  all  its  imperfections  on  its  head,  and  it  is 
not  for  the  defendants  to  gainsay  it ;  for  this  would  enable  him  to 
take  advantage  of  his  own  defaulter.  The  covenant  in  the  article 
runs  with  the  land  and  descends  upon  the  occupiers  with  notice ;  and 
this  is  the  situation  of  Dickey,  under  the  proof  which  accompanied 
the  plaintiffs'  offer.  Campbell  covenants  that  he  had  made  a  settle- 
ment, and  would  continue  it  so  as  to  complete  the  title.  Had 
Campbell  carried  into  effect  his  contract  in  good  faith,  JWCaWs 
title  would  have  been  without  exception.  It  is  only  on  account  of 
the  default  of  Campbell,  that  a  shadow  rests  upon  it.  The  evidence 
conduced  to  prove  the  issue,  and  should  have  been  received.  It  will 
be  observed,  that  the  case  is  put  upon  the  special  facts,  and  on  the 
first  objection  j  but  whether  the  plaintiff  has  complied  with  his  part 
of  the  contract,  it  is  not  now  necessary  nor  is  it  intended  to  decide. 
Of  this  the  defendants  will  have  a  right  to  avail  themselves,  when 
the  question  fairly  arises. 

The  plaintiff  in  error  also  excepts  to  the  opinion  of  the  court,  in 
refusing  to  receive  evidence  of  what  was  said  by  Philip  Templeton, 
as  to  his  having  purchased  the  land  in  despite  of  Alexander  Campbell 
and  his  mother-in-law  Mrs  Davidson,  and  what  he  said  as  to  his 
knowledge  of  the  claim  of  Archibald  M'Call.  As  this  point  is 
stated,  we  cannot  say  there  is  error.  If  these  declarations  were 
made  during  the  continuance  of  his  interest,  they  are  evidence  as 
well  against  himself,  as  those  who  claim  under  him.  The  pro- 
priety of  the  testimony  depends  upon  two  matters  which  do  not  dis- 
tinctly appear.  First,  that  the  declarations  were  made  when 
Templeton  had  an  interest,  and  secondly,  that  Dickey  claims  under 
Templeton.  The  latter,  the  plaintiff  was  prevented  from  showing, 
by  the  exclusion  of  his  first  offer. 

Judgment  reversed,  and  a  venire  de  novo  awarded. 


Sept.  1832.]  OF  PENNSYLVANIA.  155 


Commonwealth  ex  rel.  Hall  against  Cook. 

A  citizen  of  the  district  of  Columbia  removed  into  Pennsylvania  to  reside,  and 
brought  with  her  a  slave,  who  in  .consideration  of  manumission,  with  the  consent  of 
her  mother,  bound  herself  by  indenture  to  serve  for  seven  years.  Hdd :  That  such 
indenture,  having  been  executed  in  Pennsylvania,  is  void,  and  the  slave  is  entitled 
to  her  liberty. 

HABEAS  CORPUS  case. 

Ellen  M.  Williamson,  of  the  District  of  Columbia,  was  the  owner 
of  Hannah  Hall,  a  slave  for  life ;  she  removed  into  Pennsylvania  to 
reside,  and  brought  Hannah  with  her;  after  their  residence  here  had 
commenced,  the  said  Hannah,  by  and  with  the  advice  and  consent  of 
her  mother,  and  in  consideration  of  manumission,  bound  herself  by 
indenture  to  serve  for  seven  years.  The  indenture  recited,  that  it 
was  entered  into  in  pursuance  of  a  parol  agreement  made  before 
their  removal  into  Pennsylvania;  but  there  was  no  proof  of  this  fact. 
The  indenture  thus  made  was  transferred  to  George  A.  Cook.  The 
only  question  which  arose  was,  whether  an  indenture  in  considera- 
tion of  manumission,  executed  in  Pennsylvania,  had  any  validity. 

W.  W.  Fetterman,  for  relator. 
Darrah,  for  respondent. 

The  opinion  of  the  Court  was  delivered  by 

ROGERS,  J. — This  was  a  habeas  corpus,  issued  at  the  instance  of 
Hannah  Hall.  The  respondent  returns,  that  he  holds  the  said  Han- 
nah Hall  by  virtue  of  a  deed  of  indenture,  executed  by  the  said  Han- 
nah Hall,  by  and  with  the  consent  of  her  mother  of  the  one  part,  and 
Ellen  M.  Williamson  and  B.  Williamson  of  the  other,  by  which  said 
indenture  the  said  Hannah  Hall  binds  herself  to  serve  for  the  term  of 
seven  years,  to  learn  the  art  and  mystery  of  a  servant  and  waiter  ;  in 
consideration  of  manumission  from  slavery,  granted  in  the  District 
of  Columbia,  to  the  said  Hannah  Hall.  The  said  indenture,  by  and 
with  the  consent  of  her  mother,  was  assigned  for  a  valuable  consid- 
eration to  the  said  George  A.  Cook.  There  are  some  facts  connect- 
ed with  the  case  about  which  there  is  no  dispute.  It  is  agreed  that 
Hannah  Hall  was  the  slave  of  Ellen  M.  Williamson.  That  the  mis- 
tress brought  her  slave  within  the  limits  of  the  state,  with  the  inten- 
tion to  reside  in  Pennsylvania.  And  that  the  indenture  of  servitude 
was  not  executed  until  the  10th  of  November  1830,  several  days 
after  their  arrival  at  Pittsburgh,  with  intention  of  making  it  a  place 
of  permanent  abode.  The  second  section  of  the  act  of  29th  March 
1788,  enacts,  that  all  and  every  slave  or  slaves,  who  shall  be  brought 


156  SUPREME  COURT  [Pittsburgh, 

[Commonwealth  v.  Cook.] 

into  this  stale,  by  persons  inhabiting  or  residing  therein,  or  intending 
to  inhabit  or  reside  therein,  shall  be  immediately  considered,  deemed  and 
taken  to  be  free,  to  all  intents  and  purposes.  This  section,  among 
others,  was  enacted  (as  the  preamble  recites)  for  preventing  many 
evils  and  abuses,  arising  from  ill-disposed  persons  availing  themselves 
of  certain  defects  in  the  act  for  the  gradual  abolition  of  slavery,  passed 
the  1st  day  of  March,  in  the  year  of  our  Lord  1780.  Under  the  con- 
struction which  this  act  must  receive,  it  will  not  admit  of  doubt, 
that  unless  something  is  shown  other  than  the  facts  which  I  have 
stated ;  the  relator  is  entitled  to  be  discharged.  Her  case  is  brought 
within  the  letter,  and  the  obvious  intention  of  the  legislature,  who 
have  declared  that  as  soon  as  the  limits  of  the  state  are  passed,  with 
the  purpose  of  settlement,  the  slave  shall  be  deemed  and  taken 
free,  to  all  intents  and  purposes.  If  free  at  the  time  the  indenture 
was  executed,  the  indenture  is  void  ;  the  laws  of  Pennsylvania  not 
recognizing  such  a  contract,  without  regard  to  colour. 

It  is,  however,  contended,  that  the  indenture  is  good,  under  the 
thirteenth  section  of  the  act  of  1st  March  1780.  No  covenant  of 
personal  servitude  or  apprenticeship  whatsoever,  shall  be  valid  or 
binding  on  a  negro  or  mulatto,  for  a  longer  time  than  seven  years, 
unless  such  servant  or  apprentice  were,  at  the  commencement  of 
such  servitude  or  apprenticeship,  under  the  age  of  twenty-one  years  ; 
in  which  case  such  negro  or  mulatto  may  be  holden  as  a  servant  or 
apprentice  respectively,  according  to  the  covenant,  as  the  case  shall 
be,  until  he  or  she  shall  attain  the  age  of  twenty-eight  years,  but  no 
longer.  It  is  said  to  be  a  necessary  implication  from  this  act,  that 
a  binding  within  the  times  therein  limited  is  good,  and  such  are  the 
authorities,  provided  the  indenture  was  executed  in  a  state  where 
slavery  is  recognised,  by  a  person  who,  at  the  time,  was  a  slave. 
I  Yeates  365,  235 ;  6  Binn.  204 ;  4  Serg.  fy  Rawle  218.  These  de- 
cisions are  in  favour  of  liberty.  A  servitude  for  a  term  of  seven 
years  being  substituted  for  unlimited  slavery  during  life,  forms  the 
consideration  of  the  contract.  To  this  extent  the  authorities  have 
gone,  but  no  further.  No  decision  has  been  made  similar  to  this, 
which  presents  the  case,  as  is  contended,  of  an  indenture  made  in 
this  state  by  a  person  who  had  been  a  slave,  in  pursuance  of  a  pre- 
vious agreement  in  another  state.  Whatever  may  be  thought  of 
the  point  when  it  fairly  arises,  there  is  one  thing  very  clear,  that  if 
the  respondent  wishes  to  detain  a  fellow  being  in  servitude  on  that 
ground,  it  is  nothing  unreasonable  to  require  him  to  produce  unex- 
ceptionable proof  of  the  fact  on  which  he  founds  his  claim.  Is  that 
the  case  here  1  The  only  evidence  is  the  recital  in  the  indenture, 
without  any  testimony  to  show  the  circumstances  under  which  the 
deed  was  executed.  Whether  it  was  read  and  explained  to  her  we 
know  not.  We  are  required  to  presume  this,  but  if  presumptions  are 
to  be  made,  they  should  be  in  favour  of  liberty.  It  is  by  no  means 
a  strained  presumption  to  suppose  the  master  to  be  informed,  and  the 
slave  to  be  ignorant  of  her  rights.  Our  law  protects  the  interests  of 


Sept.  1832.]  OF  PENNSYLVANIA.  157 

[Commonwealth  v.  Cook.] 

married  women,  who  cannot  be  deprived  of  their  property  without 
being  fully  informed  of  the  nature  of  the  instrument  which  they  are 
required  to  sign ;  and  surely  a  person  in  the  helpless  and  unprotected 
situation  in  which  the  relator  was  placed,  requires  equal,  if  not  greater 
protection.  It  will  be  readily  seen  to  what  abuses  this  would  lead ; 
and  I  must  be  permitted  to  say,  that  I  am  not  without  suspicion  that 
this  case  does  not  form  an  exception.  The  pains  taken  in  the  in- 
denture to  recite  the  agreement,  and  the  studious  care  which  is  taken 
to  explain  the  joy  with  which  she  acceded  to  the  terms,  are  suffi- 
cient, in  themselves,  to  create  a  doubt  of  .the  entire  fairness  of  the 
transaction.  It  may  be,  and  I  should  require  some  proof  to  the  con- 
trary, that  this  was  an  expedient  to  retain  her  services,  resorted  to 
by  the  master  after  he  had  attained  a  knowledge  of  the  laws  of  this 
state,  but  a  knowledge  of  which  was  carefully  concealed  from  her. 
Hence  the  necessity  of  requiring  proof  that  she  was  fully  informed 
of  her  rights,  to  prevent  the  imposition  to  which,  from  her  situation, 
she  would  necessarily  be  subject.  If  an  agreement  was  in  truth 
made  in  the  District,  some  reason  should  be  assigned  why  it  was  not 
reduced  to  writing  ;  for  it  seems  unlikely  that  an  agreement  of  this 
consequence  should  be  left  to  rest  in  parol.  Besides,  if  the  fact  was 
as  is  stated  in  the  indenture,  it  was  so  easy  of  proof,  that  the  ab- 
sence of  testimony  in  regard  to  it  should  have  been  explained.  It 
is  improbable  that  such  a  contract  would  have  been  made,  unless  in 
the  presence  of  some  person  who  might  have  proved  the  bargain 
and  the  attending  circumstances.  As  we  think  that  the  respondent 
has  failed  in  the  proof  of  this  fact,  and  without  intending  to  express 
any  opinion  whether  an  agreement  in  the  District  of  Columbia 
would  have  entitled  the  master  to  her  services,  the  court  adjudge  the 
relator  free,  and  entitled  to  be  discharged. 

The  opinion  of  the  court  on  this  part  of  the  case  makes  it  unne- 
cessary to  notice  the  other  points  which  were  pressed  upon  us  by  the 
relator's  counsel. 


158  SUPREME  COURT  [Pittsburgh, 


Commonwealth  ex  rel.  Hall  against  Robinson. 

An  indenture  executed  in  Pennsylvania,  by  a  slave  from  the  District  of  Columbia, 
by  which  he  bound  himself  to  serve  for  seven  years  in  consideration  of  manumission, 
is  void  ;  although  made  in  pursuance  of  a  parol  agreement  entered  into  in  the  Dis- 
trict of  Columbia. 

HABEAS  CORPUS  to  William  Robinson,  Jun.  upon  the  relation 
of  Hannah  Hall  for  her  son  F.  Hall. 

The  facts  of  this  case  were  the  same  substantially  as  those  given 
in  the  preceding  case  of  the  Commonwealth  v.  Cook,  with  this  addi- 
tional fact,  that  the  indenture  was  executed  in  pursuance  of  an 
agreement  entered  info  by  the  slave,  with  consent  of  his  mother, 
before  they  left  the  District  of  Columbia. 

The  cause  was  argued  by 

W.  W.  Fetterman,  for  relator. 
Colwell,  for  respondent. 

The  opinion  of  the  Court  was  delivered  by 

ROGERS,  J. — This  presents  the  case  of  a  person  bound  to  servitude 
in  the  state  of  Pennsylvania,  in  pursuance  of  an  agreement  for  that 
purpose,  made  in  the  District  of  Columbia,  and  in  that  respect  it  dif- 
fers from  the  Commonwealth  v.  Cook,  decided  at  this  term.  In  the 
case  referred  to,  the  court  declined  giving  any  opinion,  whether  if 
the  agreement  had  been  clearly  proved  to  have  been  made  out  of 
the  state,  the  relator  would  be  entitled  to  be  discharged.  To  the 
habeas  corpus,  the  respondent  makes  the  following  return,  which  has 
been  fully  proved  by  the  evidence  given  on  the  part  of  the  respond- 
ent. "William  Robinson,  Jun.  in  obedience,  &c.  respectfully  returns, 
that  he  holds  Francis  Hall  as  his  servant  or  apprentice,  by  virtue  of 
an  indenture  entered  into  by  the  said  Francis  Hall,  with  the  consent 
of  his  mother  Hannah  Hall,  now  Hannah  Butler,  with  Basil  Wil- 
liamson, formerly  of  the  city  of  Washington,  but  more  lately  of  the 
city  of  Pittsburgh,  whereby  the  said  Francis  Hall  covenanted  to  serve 
the  said  Basil  Williamson)  until  he,  the  said  Francis  Hall,  should 
attain  the  age  of  twenty-eight  years,  viz.  until  July  1852;  which 
indenture  was  executed  in  the  said  city,  on  the  18th  of  November 
1830,  in  the  presence  and  with  the  approbation  of  C.  H.  Israel,  an 
alderman  of  the  said  city  of  Pittsburgh,  in  pursuance  of  a  verbal 
agreement  entered  into  between  the  said  Hannah  Hall,  for  herself 

and  her  son,  the  said  Francis  Hall,  who  was  then years  of  age, 

and  Ellen  Maria  Williamson,  their  mistress  in  the  said  city  of  Wash- 
ington, while  she,  the  said  Hannah,  and  he,  the  said  Francis,  were 


Sept.  1832.]  OF  PENNSYLVANIA.  159 

[Commonwealth  v.  Robinson.] 

slaves,  a  few  days  previously  to  leaving  the  said  city  with  a  view  to 
reside  in  Pittsburgh,  and  which  agreement  was  made  at  the  earnest 
solicitation  of  the  said  Hannah  Hall,  who  was  unwilling  that  herself 
and  her  children  should  be  sold  as  slaves.  •  The  indenture  before 
mentioned  was  made  to  Basil  Williamson,  in  pursuance  of  an  agree- 
ment to  that  effect,  between  the  said  Ellen  Maria  Williamson,  her 
father  the  said  Basil  Williamson,  and  the  said  Hannah  Hall,  for  her- 
self and  her  children,  and  stated  at  large  in  the  said  indenture. 
The  said  indenture  of  servitude  or  apprenticeship  of  the  said  Fran- 
cis Hall  was  informally  assigned,  some  weeks  since,  to  the  said 
William  Robinson,  Jun.  by  S.  Caldwell,  as  attorney  in  part  of  Basil 
Williamson,  with  the  understanding  that  a  formal  indenture  should 
be  executed."  Since  the  case  of  the  Commonwealth  v.  Cook,  so  re- 
cently decided,  it  is  not  open  to  argument,  that,  independent  of  the 
penal  agreement  mentioned  in  the  return,  the  relator  must  be  dis- 
charged. It  remains  then  for  us  to  inquire,  and  our  attention  has 
been  thus  directed,  whether  that  circumstance  makes  any  difference; 
and  we  are  of  opinion  that  it  does  not.  The  preamble  of  the  thir- 
teenth section  of  the  act  of  the  1st  of  March  1780,  recites  the  mis- 
chief which  the  legislature  intended  to  remedy.  "  And  whereas  at- 
tempts," says  the  preamble,  "  may  be  made  to  evade  this  act,  by 
introducing  into  this  state  negroes  and  mulattoes,  bound  by  cove- 
nant to  serve  for  a  long  and  unreasonable  term  of  years,  if  the  same 
be  not  prevented."  "  Therefore,  no  covenant  of  personal  servitude, 
or  apprenticeship  whatsoever,  shall  be  valid  or  binding,  &c." 

The  evil  which  the  legislature  seems  to  have  foreseen,  was  a  bind- 
ing without  the  limits  of  the  state,  for  a  considerable  length  of  time, 
for  the  purpose  of  introducing  them  within  the  state.  And  this 
seems  to  have  been  the  view  which  the  supreme  court  took  of  the  act 
in  Respublica  v.  Jailor  of  Philadelphia  County,  1  Yeates  368.  This 
was  the  first  case,  after  the  passage  of  the  act,  which  recognizes  the 
validity  of  an  indenture  of  a  slave,  in  consideration  of  manumission. 
The  court,  in  speaking  of  a  binding  out  of  the  limits  of  the  state, 
use  the  following  language.  "  The  thirteenth  section  was  enacted  to 
prevent  the  evils  which  would  result  from  attempts  to  evade  the 
.spirit  of  the  law,  by  importing  negroes  or  mulatto  servants  into  the 
state,  for  long  terms  of  years.  But  negroes  or  mulattoes,  bound  in 
other  states,  to  serve  until  twenty-eight  years,  whose  indentures 
have  been  executed  to  liberate  them  from  a  longer  servitude  or 
from  slavery,  and  brought  into  the  state,  may  be  holden  as  servants, 
according  to  their  indenture,  under  the  express  words  and  meaning 
of  the  act."  It  must  be  observed,  that  this  was  the  first  case  de- 
cided on  the  act,  and  may  be  regarded  as  in  some  measure  a 
contemporaneous  exposition  of  it.  The  words  bound  in  other  states 
and  brought  into  this  state,  are  in  italics,  which  is  some  slight  intima- 
tion, that  the  court  considered  these  circumstances  as  essential  to 
the  validity  of  the  contract.  The  spirit  of  the  decision  is  this,  that 


160  SUPREME  COURT  [Pittsburgh, 

[Commonwealth  v.  Robinson.] 

the  person  bound,  must  be  in  a  condition  to  receive  an  advantage 
from  the  contract ;  and  this  is  the  case  of  a  slave  or  servant  for  a 
very  long  time,  for  whose  benefit  it  is  to  exchange  that  condition, 
for  the  mitigated  servitude  recognized  by  the  law  of  this  state.  It 
is  on  this  principle  that  the  binding  of  a  slave,  who  has  absconded, 
may  be  made  within  the  state.  It  would  be  a  useless  ceremony  to 
take  the  slave  out  of  the  state  to  make  the  indenture  valid.  The 
Commonwealth  v.  Clements,  6  Binn-  207. 

The  act  also  uses  these  terms,  "  no  covenant  of  personal  servitude 
or  apprenticeship,  shall  be  binding."  When  the  legislature  uses  a 
legal  term,  it  is  supposed  to  be  with  a  legal  signification.  A  coven- 
ant is  defined  to  be  "  the  agreement  or  consent  of  two  or  more  by 
deed,  in  writing,  sealed  and  delivered,  whereby  either  or  one  of  the 
parties  doth  promise  to  the  other,  that  something  is  done  already,  or 
shall  be  done  afterwards."  Vide  Jacob's  Law  Diet,  and  ShepparcFs 
Touchstone.  Under  the  act  of  1770,  also,  a  binding  of  an  apprentice 
must  be  by  indenture.  Without  insisting  on  the  danger  of  imposi- 
tion, which  would  result  from  allowing  a  parol  agreement  to  validate 
an  indenture,  we  are  of  opinion,  that  to  make  the  contract  binding, 
it  must  be  by  indenture,  as  in  the  case  of  apprenticeship,  or  executed 
before  the  mulatto  or  negro  is  brought  within  the  state.  In  adopting 
this  rule,  we  impose  no  hardship  on  persons  who  may  wish  to  intro- 
duce that  class  within  the  state.  It  is  as  easy  to  execute  the  inden- 
ture out,  as  in  the  state.  It  is  presumed,  that  before  they  take  a  step 
of  this  kind  they  will  inform  themselves  of  the  statutes  of  the  state, 
and  conform  to  the  regulations  which  may  be  required. 


Sept.  1832.]  OF  PENNSYLVANIA.  161 


Lyon  against  Allison. 

In  an  action  for  a  legacy  brought  against  executors  and  a  devisee  of  land  charged 
with  its  payment,  a  report  of  arbitrators  was  made  in  favour  of  the  executors,  and 
against  the  devisee,  from  which  one  of  the  executors  (the  other  dissenting)  appealed, 
without  the  payment  of  the  costs:  held,  that  the  appeal  was  rightly  stricken  off  by 
the  court  of  common  pleas. 

ERROR  to  the  common  pleas  of  Erie  county. 

This  was  an  action  for  a  legacy  by  Robert  Allison  and  wife  against 
Thomas  Greenwood  and  Jasper  Lyon,  executors  of  Thomas  L/yon  de- 
ceased, and  Joseph  Aikin,  terre  tenant,  with  notice  to  John  Lyon,  the 
devisee.  This  declaration  was  filed  : 

"  Thomas  Greenwood  and  Jasper  Lyon,  late  of  said  county,  exe- 
cutors of  the  last  will  and  testament  of  Thomas  Lyon  deceased, 
and  Joseph  H.  Jlikin,  terre  tenant  of  the  land,  were  summoned  to 
answer,  with  notice  to  John  Lyon,  the  devisee  of  the  land,  Robert 
Allison  and  Jane  his  wife,  in  a  plea  of  debt,  whereupon  they  unlaw- 
fully detain,  &c.  And  thereupon  the  said  plaintiffs,  by  John  Riddle, 
their  attorney,  complain  :  for  that  Thomas  Lyon,  late  of  the  county 
of  Erie  aforesaid,  heretofore,  to  wit  on  the  10th  day  of  July,  A.  D. 
1827,  being  seised  in  his  demesne  as  of  fee,  of  and  in  a  certain  tract 
of  land,  situate  in  the  township  of  Harbour  Creek,  in  the  county 
aforesaid,  lying  on  the  Buffalo  road,  about  nine  miles  east  of  the 
borough  of  Erie,  and  being  the  same  on  which  his  son  John  resided. 
And  being  so  seised,  he,  the  said  Thomas,  on  the  10th  day  of  July 
aforesaid,  made  his  last  will  and  testament,  in  writing,  [since  his 
death  duly  proved]  and  therein  devised  the  one  half  of  the  aforesaid 
tract  of  land  to  his  son,  John'Lyon,  in  fee  simple;  subject,  however, 
among  other  things,  to  the  payment  to  his  daughter,  Jane  Lyon,  the 
sum  of  100  dollars,  to  be  paid  within  two  years  of  the  decease  of  the 
said  Thomas  Lyon.  That  the  said  John  accepted  the  land  so  devised 
to  him,  and  took  the  possession  of  the  same,  and  leased  it  to  the  pre- 
sent terre  tenant,  Joseph  H.  Jlikin,  who  now  holds  the  same  by  virtue 
thereof,  &c.  And  the  said  Jane  Lyon,  after  the  death  of  the  said  Thomas 
Lyon,  and  before  the  commencement  of  this  suit,  intermarried  with 
the  aforesaid  Robert  Mlison.  And  the  said  plaintiffs  aver,  that  after 
the  expiration  of  the  aforesaid  two  years  from  the  death  of  the  said 
Thomas  Lyon,  and  before  the  commencement  of  this  suit,  the  afore- 
said legacy  of  100  dollars  was  demanded  by  the  plaintiff,  of  the  de- 
fendants, but  the  same  has  been  neglected  by  them,  to  the  damage 
of  the  said  plaintiffs,  &c." 

At  the  instance  of  the  plaintiffs,  arbitrators  were  chosen  ;  the  cause 
was  tried  before  them,  and  they  made  the  following  report.  "Septem- 


162  SUPREME  COURT  [Pittsburgh, 

[Lyon  v.  Allison.] 

her  10th,  1830,  arbitrators  report  an  award  in  favour  of  the  plaintiff  for 
the  sum  of  100  dollars,  with  interest  from  the  12th  of  September  1829, 
charged  on  the  land  in  the  declaration  mentioned,  as  there  set  forth  ; 
judgment  to  be  entered  on  this  award,  so  as  to  allow  execution  to  go 
against  the  land  only  charged  as  aforesaid,  and  not  the  persons  or 
other  property  of  the  defendants." 

On  the  same  day  that  the  award  was  filed,  Jasper  Lyon,  one  of  the 
executors,  appealed  from  it,  without  oath  or  bail. 

On  the  29th  of  September,  Thomas  Greenwood,  the  other  executor, 
dissented  from  the  appeal. 

At  the  next  term,  Mr  Riddle,  attorney  for  the  plaintiffs,  asked  the 
court  to  quash  the  appeal,  for  these  reasons  : 

1st.  Because  there  is  no  affidavit  or  recognizance ;  and  because 
the  costs  are  not  paid. 

2d.  Because  the  appeal  is  entered  by  Jasper  Lyon,  who  was  not 
summoned  ;  and  the  other  executor  who  was  summoned  dissents. 

3d.  If  the  appeal  is  good  as  to  the  executors,  it  is  not  good  to  the 
others  who  are  the  real  parties  in  interest,  and  who  cannot  appeal 
without  complying  with  the  act  of  assembly  as  to  costs,  &c. 

The  court  below  quashed  the  appeal,  and  this  writ  of  error  was 
sued  out  to  have  the  same  reinstated. 

/.  Banks,  for  plaintiff  in  error. 

J.  S.  Riddle,  for  defendant  in  error. 

The  opinion  of  the  Court  was  delivered  by 

HUSTON,  J. — It  sometimes  happens  in  our  practice,  that  a  man's 
name  is  used  as  a  plaintiff  who  has  no  interest  in  the  matter  trying, 
is  not  liable  for  costs,  and  cannot  release  the  action  :  as  in  the  case  of 
the  obligor  of  a  bond,  which  has  been  informally  assigned  ;  his  name 
is  used  as  plaintiff  for  the  use  of  him  to  whom  it  was  transferred. 

In  this  suit  the  executors  are  joined,  that  if  there  were  debts  of  the 
testator  which  would  require  the  assets  of  the  estate  to  pay,  they 
might  make  it  known  ;  that  if  they  should  allege  that  the  legacy  was 
not  a  charge  upon  the  land,  they  might  have  a  decision  on  that  sub- 
ject ;  and  if  that  decision  should  be  that  the  land  is  charged,  and 
the  legacy  shall  be  levied  down  from  it,  the  executors  are  discharged, 
and  have  no  further  interest  in,  or  control  over  the  cause.  There 
was,  then,  no  error  in  quashing  this  appeal.  Every  circumstance 
and  fact  prove  that  the  appeal  was  not  bona  fide  by  the  defendant 
as  executor,  but  really  for  the  pur  pose  of  delay,  to  benefit  his  brother, 
against  whose  land  the  judgment  was.  If  this  appeal  be  sustained, 
what  is  to  be  tried  ?  The  court  cannot  try  the  interest  of  the  de- 
visee ;  he  has  not  appealed.  The  only  matter  that  could  be  tried 
would  be,  whether  there  should  be  a  judgment  against  the  execu- 
tors. They  and  the  estate  are  now  clear.  When  executors  sever 
in  pleading,  the  court  will  lake  that  plea  which  is  best  for  the  estate  ; 


Sept.  1832.]  OF  PENNSYLVANIA.  163 

[Lyon  v.  Allison.]  \ 

clearly  it  is  not  best  for  the  estate  that  this  burthen  should  be  taken 
from  the  devisee  of  this  land  and  put  on  the  general  estate. 
Judgment  affirmed. 


,/>s./{ 


Hoge  against  Hoge. 

Declarations  of  a  testator,  made  contemporaneously  with  his  will,  are  competent 
evidence  to  establish  a  trust  in  him  to  whom  an  absolute  estate  is  devised,  when  fol- 
lowed by  evidence  that  such  devise  was  obtained  by  the  fraudulent  procurement  of 
the  devisee. 

If  a  testator  be  induced  to  make  a  devise,  by  the  promise  of  the  devisee  that  it 
should  be  applied  to  the  benefit  of  another,  a  trust  is  thereby  created,  which  may  be 
established  by  parol  evidence ;  and  this  is  not  contrary  to  the  statute  of  wills. 

If  a  compromise  of  a  doubtful  right  be  obtained  from  a  plaintiff  through  the  misre- 
presentation of  a  witness,  and  in  consequence  of  the  influence  of  his  testimony,  and 
the  persuasion  of  arbitrators,  to  whom  the  same  had  been  referred :  it  is  not  binding, 
if  the  defendant  knew  of  such  misrepresentation,  and  availed  himself  unduly  of  its 
influence. 

ERROR  to  the  common  pleas  of  Washington  county. 

This  was  an  action  of  ejectment  by  William  Hoge  against  William 
Wilson  and  William  Hoge,  son  of  David  Hoge,  brought  to  December 
term  1827,  to  recover  the  possession  of  an  undivided  equal  third  part 
of  six  hundred  acres  of  land,  adjoining  the  borough  of  Washington. 
Both  parties  claimed  under  William  Hoge,  and  admitted  that  he  died 
seised  of  an  estate  in  fee  simple  in  the  land  in  dispute. 

The  plaintiff  below,  on  the  trial,  in  order  to  support  his  claim  to 
th«  land,  gave  in  evidence  the  last  will  and  testament  of  William 
Hoge,  the  deceased,  dated  the  21st  day  of  September  1814,  and 
proved  the  9th  day  of  November  1814,  by  which  he,  inter  alia,  de- 
vised as  follows,  to  wit :  "  I  devise,  will  and  direct,  that  my  lands 
should  be  divided  into  three  equal  shares  or  portions,  according  to 
quantity  and  quality;  one  of  which  shares  or  portions  I  devise  to  the 
male  heirs  of  my  deceased  brother,  Jonathan  Hoge,  their  heirs  and 
assigns  for  ever ;  the  second  share  or  portion  1  devise  to  the  male 
heirs  of  my  brother,  David  Hoge,  their  heirs  and  assigns  for  ever;  and 
the  remainder  share  or  portion  I  devise  to  my  brother,  John  Hoge,  his 
heirs  and  assigns  for  ever ;  also  after  the  decease  or  marriage  of  my 
said  well  beloved  wife,  Isabella  Hoge,  I  devise  and  bequeath  to  my 
aforesaid  friend  and  nephew,  James  Elaine,  all  my  quit  rent  estate,  to 
be  held  during  his  natural  life,  and  after  his  decease  that  it  shall  be 
divided  and  held  in  the  same  manner  and  designation  of  persons  as 
my  other  landed  estate." 

The  plain  tiff  below  then  offered  to  prove  by  Thomas  M'Gffin,  Esq. 
and  others,  that  the  devise  to  John  Hoge,  in  the  will  just  read,  was 
made  in  trust  for  the  said  plaintiff,  and  for  that  purpose  offered  to 


164  SUPREME  COURT  [Pittsburgh, 

[Hoge  v.  Hoge.] 

give  in  evidence  the  declarations  of  the  testator,  made  at  the  time  of 
writing  the  will,  to  Mr  M'Giffin,  the  witness,  who  was  the  scrivener, 
and  again  by  subsequent  declarations  of  John  Hoge,  the  devisee 
named  in  the  will ;  to  which  the  defendants'  counsel  below  objected, 
whereupon  the  court  overruled  the  objection  and  admitted  the  testi- 
mony, to  which  opinion  of  the  court  the  defendants'  counsel  excepted, 
and  prayed  the  court  to  sign  and  seal  a  bill  of  exceptions,  which  was 
accordingly  done. 

Subject  to  the  above  exception,  the  plaintiffbelow  gave  in  evidence 
the  following  parol  evidence — first  by 

Thomas  M'Giffin,  who,  being  sworn,  testified,  that  some  time  be- 
fore th?  will  of  William  Hoge  was  written,  not  many  days,  the  tes- 
tator told  witness  that  he  wanted  him  to  write  his  will,  not  to  help 
him  to  make  it — that  he  would  do  himself;  that  he  had  intended 
writing  it  himself,  but  had  neglected  it  until  now,  when  his  disease 
made  it  inconvenient  for  him  to  write.  Testator  spoke  of  this  matter 
a  second  time  to  the  witness;  and  some  few  days  afterwards,  when 
witness  had  called  again  to  see  the  testator,  he  told  witness  it  was 
now  time  to  finish  that  business  of  which  he  had  been  before  speak- 
ing to  him.  Testator  then  repeated  to  the  witness  the  disposition 
which  he  wished  to  have  made  of  his  estate,  and  witness  committed 
it  to  writings  as  contained  in  the  will — read  it  over  to  the  testator, 
who  said  it  was  right.  Whilst  the  witness  was  writing  the  will, 
the  testator,  in  speaking  of  the  devise  to  his  brother  John,  observed 
to  witness,  (though  witness  cannot  recollect  the  precise  words  used 
by  testator,  but  in  substance  said)  as  regards  the  devise  to  his  brother 
John  Hoge,  it  was  a  trust,  and  that  he  had  no  other  way  of  doing  it ; 
he  must  leave  it  entirely  to  his  honour,  that  he  had  full  confidence 
in  him.  Testator  named  no  person  for  whorn  the  trust  was  intended. 
After  writing  the  will,  witness  read  it  over  to  the  testator,  who  was 
lying  on  his  bed,  very  deliberately,  clause  by  clause,  and  when  done, 
testator  observed,  "  That's  the  yarn,  only  you  have  converted  a  horse 
into  a  filly."  Testator  again  repeated  that  the  devise  to  his  brother 
John  was  a  trust,  and  that  he  had  no  other  way  of  doing  it,  that  he 
must  leave  it  to  his  honour,  and  in  that  he  had  entire  confidence. 
No  words  were  used  at  the  time  by  the  testator  to  indicate  the  per- 
son for  whom  the  trust  was  intended.  On  the  evening  of  the  day  of 
the  funeral  of  the  deceased,  after  it  was  over,  witness  thinks,  but 
will  not  be  sure  that  it  was  at  that  time,  he  met  with  John  Hoge,  the 
devisee,  in  the  street  of  Washington,  when  a  conversation  took  place 
about  his  brother  William's  making  his  will.  Witness  stated  to  John 
Hoge  what  disposition  the  testator  had  made  of  his  estate,  and  the 
devise  made  to  himself,  that  is  John  Hoge,  and  also  what  the  testa- 
tor said  at  the  time  of  writing  the  will,  in  regard  to  it,  to  which  John 
Hoge  replied,  "  that  is  intended  for  young  William  Hoge."  John 
Hoge  further  said,  that  he  had  been  a  long  time  trying  to  get  him  to 
do  it,  but  he  had  not  the  courage.  John  Hoge  then  went  on  to  state 
the  difficulties  made  by  his  brother,  when  he  spoke  to  him  on  behalf 


Sept.  1832.]  OF  PENNSYLVANIA.  165 

[Hoge  v.  Hoge.] 

of  young  William  Hoge,  (meaning  the  plaintiff)  and  among  other 
things,  mentioned,  that  if  it  were  given  to  him  all  at  once  it  might 
do  him  more  injury  than  good — that  he  could  not  in  justice  give  him 
his  personal  estate,  for  that  of  right  belonged  to  his  wife,  and  as  to 
his  real  estate,  that  he  had  got  from  his  father,  and  wished  it  to  con- 
tinue in  the  family  name.  John  Hoge  also  stated,  that  it  was  through 
him  that  the  testator  had  been  prevailed  on  to  furnish  or  to  pay  for 
a  horse,  saddle  and  bridle,  and  some  other  things,  as  a  military  equip- 
ment for  the  plaintiff,  then  about  going  out  on  militia  duty  during 
the  late  war  with  England.  That  these  things  had  been  gotten, 
and  finally  he  prevailed  on  the  testator  to  pay  for  them.  Witness 
had  no  subsequent  conversation  with  John  Hoge  in  relation  to  the 
trust,  except  what  passed  at  the  time  of  taking  witness's  depo- 
sition, which  was  intended  to  be  read  in  evidence  before  arbitra- 
tors, to  whom  a  former  action  of  ejectment,  brought  by  the  plaintiff 
for  the  same  property,  had  been  referred.  John  Hoge  then  said 
that  he  considered  that  witness  was  in  error  as  to  his  apprehen- 
sion of  some  of  the  particulars  referred  to  in  the  conversation 
first  above  had  between  them,  and  said  witness  must  have  con- 
founded what  passed  at  that  time  with  other  matters. 

On  the  bringing  of  the  former  action,  which  was  commenced 
against  Samuel  Lyon,  witness  stated  that  he  received  a  few  lines 
written  by  John  Hoge  to  him,  which  lines  were  produced,  and  in 
which  John  Hoge  states,  that  he  had  that  day,  to  wit  the  1st  day 
of  June  1820,  been  informed  that  the  plaintiff  had  employed  Messrs 
J\f'Kennan  and  William  Baird  to  bring  a  suit  against  him  for  the 
land  in  dispute,  and  that  he  wished  the  witness  and  Mr  Campbell  to 
be  counsel  for  him.  In  relation  to  the  land,  John  Hoge  stated  to 
witness,  that  his  brother  William  said  it  had  come  from  his  father, 
and  he  did  not  wish  it  to  go  out  of  the  name  or  family  of  the  male 
line,  not  certain  which  expression  he  used,  but  witness  considered 
the  one  expression  equivalent  to  the  other.  In  the  conversation  with 
John  Hoge,  in  reference  to  his  brother's  disposing  of  his  property, 
witness  understood  him  as  alluding  to  a  will ;  because  in  speaking 
of  witness  being  appointed  one  of  the  executors  of  the  will,  John 
Hoge  said  that  he  had  suggested  that  to  his  brother  William.  Wit- 
ness understood  John  Hoge  to  have  said,  that  when  his  brother  spoke 
of  the  difficulties  that  occurred  in  making  provision  for  the  plaintiff) 
he  (John  Hoge)  suggested  to  his  brother  to  give  it  to  him  ;  but  did 
not  speak  of  a  devise  nor  a  will  then  ;  nor  say  in  words  that  his  bro- 
ther had  ever  consented  to  do  so.  Witness  has  no  recollection  of 
John  Hoge's  telling  him  of  any  objections  that  the  testator  had  in 
his  lifetime  to  the  plaintiff.  Thinks  the  widow  of  the  testator  was 
married  to  Mr  Reed  in  the  fall  of  1819.  Some  short  time  before  her 
marriage  with  Mr  Reed,  witness  asked  Mr  John  Hoge  if  he  would 
sell  the  property  devised  to  him  by  his  brother  William,  as  he  wished 
to  purchase  it.  Mr  Hoge  answered  he  would.  Witness  found  af- 
terwards that  he  was  unable  to  buy,  and  declined  it.  That  the 


166  SUPREME  COURT  [Pittsburgh, 

[Hoge  v.  Hoge.] 

trust  was  not  mentioned  or  spoken  of  by  either  of  them  at  any  time 
when  witness  talked  with  Mr  Hoge  about  buying  the  property. 

John  Graham  sworn,  and  says  :  that  on  the  evening  after  the  fu- 
neral of  William  Hoge,  John  Hoge  told  him  that  his  brother  William 
had  left  his  real  estate  to  be  divided  into  three  equal  parts,  to  David, 
Jonathan  and  himself.  It  is  so  long  since,  that  witness  cannot  re- 
collect distinctly:  that  one-third  was  left  to  him  (John  Hoge)  in 
trust  for  young  William.  John  Hoge  said  there  were  two  points  in 
which  his  brother  had  not  done  right ;  one  was  in  cutting  out  the 
widow  of  her  thirds  when  she  married,  and  the  other  was  something 
in  respect  to  young  William;  but  cannot  say  now  what  it  was ; 
whether  it  was  that  he  had  not  left  him  enough,  cannot  say.  John 
Hoge  stated  then  that  testator  had  not  done  as  he  ought  to  have 
done  for  young  William. 

Jacob  Henry  sworn,  and  says  :  that  the  last  time  he,  witness,  was 
over  with  John  Hoge  at  his  place  above  Georgetown,  shortly  after 
the  death  of  William  Hoge,  witness  went  there  to  work  for  John 
Hoge.  John  Hoge  took  a  copy  of  the  will  out  of  his  pocket,  and 
read  it.  He  said  it  was  not  in  the  will,  but  he  (John  Hoge)  was 
authorized  to  give  it  to  young  William ;  that  he  was  not  a  lawful 
child.  John  Hoge  talked  about  it  several  times,  the  same  thing. 
He  worked  for  John  Hoge  about  his  mill.  Heard  him  say  that  one- 
third  was  given  in  the  will  to  him,  and  he  had  it  in  his  power  to 
give  it  to  young  William.  There  was  one  time  when  James  Reed, 
who  is  now  dead,  was  present ;  nobody  else  present  at  any  time. 
The  plaintiff  spoke  to  me  long  ago,  about  what  I  knew,  in  the  life- 
time of  John  Hoge;  but  witness  told  him  he  might  as  well  do  with- 
out him.  Plaintiff  spoke  to  witness  again  about  it,  and  after  think- 
ing on  it,  recollected  all  as  well  as  ever.  Witness  heard  John  Hoge 
tell  Mr  Grimes  about  it.  John  Hoge  did  not  say  to  Grimes  that  there 
was  any  thing  in  which  his  brother  William  had  done  wrong  in  his 
will  in  regard  to  his  widow;  mentioned  nothing  of  the  kind.  Never 
heard  him  speak  of  it  to  any  other  person. 

The  deposition  of  Joseph  Pentecost,  who  says  :  he  never  had  any 
conversation  with  John  Hoge,  but  once,  on  the  subject  of  his  brother's 
will.  Shortly  after  the  death  of  his  brother,  deponent  asked  if  de- 
ceased had  made  any  provision  for  young  William?  Mr  Hoge's  reply 
was  this :  that  William  wished  him  to  give  part  of  his  own  estate 
then,  that  is  at  the  time  of  his  death  ;  but  he  refused  to  do  it,  alleg- 
ing that  young  William  might  as  well  wait  to  the  marriage  or  death 
of  Mrs  Hoge ;  as  she  was  young  she  would  outlive  him,  and  he 
wanted  the  use  of  his  own  property.  On  cross  examination  :  Did 
John  Hoge  state  any  thing  that  was  offered  to  him  in  lieu  of  the 
property  to  be  given  by  him  to  young  William  ?  Answer,  No.  The 
question  he  (deponent)  put  to  John  Hoge,  relative  to  the  provision 
made  for  young  William,  was  in  consequence  of  John  Hoge's  writing 
to  deponent  to  take  young  William  into  his  lanyard,  and  in  conse- 
quence of  knowing  that  Mr  Hoge  had  been  sending  young  William 


Sept.  1832.]  OF  PENNSYLVANIA.  167 

[Hoge  v.  Hoge.] 

to  school,  and  he  drew  the  inference  that  John  Hoge  was  'to  get  pro- 
perty from  William  Hoge's  estate. 

Andrew  Swearingen's  deposition.  Some  time  after  the  death  of 
William  Hoge,  he  fell  in  company  with  John  Hoge  at  his  own  house, 
and  knowing  that  John  Hoge  was  always  a  great  friend  to  young 
William,  felt  anxious  to  know  what  the  deceased  had  done  for  him 
by  will.  Mr  John  Hoge  told  me  that  he  had  not  left  him  any  thing. 
Deponent  expressed  surprise,  as  he  had  not  heard  of  any  other  child. 
Mr  Hoge  told  him  that  his  brother  was  a  great  stickler  for  the  name, 
and  did  not  like  to  leave  any  thing  out  of  the  name,  and  mentioned 
that  he  had  often  urged  his  brother  to  do  something  very  decent  for 
young  William;  his  brother  said  he  wished  to  do  so,  but  said  the 
young  man  might  die  without  heirs,  and  the  estate  would  go  out  of 
the  family ;  but  there  was  an  understanding  between  him  and  his 
brother,  that  if  young  William  was  to  marry  and  get  a  male  heir, 
that  then  he  had  it  in  his  power,  as  he  expressed  it,  to  do  something 
very  decent  for  him.  Mr  Hoge  and  deponent  never  had  any  con- 
versation after  that  on  the  subject.  He  has  known  young  William 
from  a  child  ;  his  character  good;  and  it  was  his  opinion  that  deceased 
took  notice  of  him  when  a  child.  He  does  not  know  that  deceased 
ever  gave  him  a  cent,  but  John  Hoge  did,  and  put  him  in  business, 
and  was  like  a  father  to  him. 

George  Morgan's  deposition.  Some  time  after  the  death  of  Wil- 
liam Hoge,  deponent  had  a  conversation  with  Mr  John  Hoge,  relative 
to  the  will  of  William  Hoge.  He  stated  the  manner  in  which  he 
had  left  it :  one  third  of  the  real  estate  to  himself  in  trust  for  young 
William  Hoge ;  that  this  had  been  done  by  by  his  advice,  or  at  his 
instance.  Mr  Hoge,  as  well  as  I  can  recollect,  mentioned  two  rea- 
sons for  this ;  the  one  he  thought  a  wrong  delicacy  to  Mrs  Hoge ; 
the  other,  in  case  of  William  Hoge's  dying  without  issue  before  Mrs 
Hoge's  marriage  or  death,  it  might  go  to  his  mother's  branch  of  the 
family,  which  with  his  brother's  family  pride  he  could  not  bear;  and 
as  it  came  from  his  father,  it  should  be  retained  in  the  name,  and 
did  not  think  it  ought  to  change  its  channel.  Mr  Hoge  mentioned 
that  he  wanted  his  brother  to  do  more  for  him ;  but  I  think  the 
amount  of  it  was,  that  he  replied  it  was  sufficient.  Mr  Hoge  then 
remarked  that  "  with  my  brother  I  could  go  a  certain  length,  but 
further  he  would  not  allow."  I  gave  important  employment  to 
young  William,  in  consequence  of  Mr  Hoge's  application  ;  and  I  also 
saw  letters  from  Mr  Hoge  to  officers  in  the  army,  recommending 
young  William  to  office,  one  of  which  was  to  major  Reed.  During 
the  time  young  William  was  with  me,  he  was  lamenting  his  situa- 
tion in  life.  I  told  him  he  ought  to  have  patience  ;  that  he  was 
well  provided  for,  in  at  least  Mr  John  Hoge's  say  so.  He  mentioned 
this  frequently  as  a  favourable  trait  in  Mr  Hoge's  character,  having  a 
property  left  to  him,  and  declaring  it  in  trust  for  another,  and  also 
providing  for  a  person  in  young  William's  situation.  He  had  several 
conversations  with  Mr  Hoge,  and  all  went  to  the  same  point. 


168  SUPREME  COURT  [Pittsburgh, 

[Hoge  v.  Hoge.] 

Young  William's  character  good.  That  Mr  John  Hoge  had  advised 
his  brother  to  provide  for  this  young  man,  notwithstanding  his  birth. 
Young  William  depends  on  his  own  exertions  for  support.  The 
business  he  gave  him  was  the  collection  of  8000  or  10,000  dollars, 
and  he  did  it  with  fidelity. 
Plaintiff  closed  his  testimony. 
The  defendants  then  gave  the  following  evidence : 
A  deed  of  conveyance  from  John  Hoge  to  William  Hoge,  son  of 
David  Hoge,  dated  the  24th  day  of  August  1820,  for  the  land  in  dis- 
pute, was  read  in  evidence,  and  is  in  the  following  terms :  "  know 
all  men  by  these  presents,  that  whereas  the  late  William  Hoge,  Esq. 
by  his  last  will  and  testament,  devised  one  third  of  his  real  estate  in 
the  county  of  Washington,  Pennsylvania,  to  the  undersigned,  which 
devise,  it  is  alleged  and  now  believed,  was  in  trust,  with  full  power 
to  select  and  grant  the  same  to  such  of  the  male  heirs  of  said  testa- 
tor, as  he  the  undersigned  might  deem  most  worthy.  And  whereas, 
although  it  would  be  desirable  to  delay  the  execution  or  declaration 
of  said  trust  for  some  time,  on  several  accounts ;  yet,  taking  into 
view,  the  sudden  and  violent  disorder  to  which  the  undersigned  is 
subject,  and  by  which  he  has  more  than  once  been  brought  in  an 
instant  to  the  brink  of  the  grave,  he  deems  it  now  proper  to  make 
the  declaration  and  execute  the  trust  aforesaid,  especially  as  he  is 
advised  that  David  Hoge,  Esq.  of  Steubenville,  Ohio,  who  is  the 
natural  guardian  of  the  selected  objects  of  the  trust,  and  who  is  of 
that  age  that  promises  a  continuance  of  life,  can  be  fully  authorized 
to  make  any  disposition  of  the  property  devised,  not  incompatible 
with  the  views  of  the  testator.  And  whereas,  expectations  have 
been  excited  by  alleged  incautious  conversations  of  the  undersigned, 
held  with  various  persons  previous  to  any  certain  knowledge  he  had 
of  the  said  devise  being  in  trust,  which  cannot  now  be  gratified,  be- 
cause the  trust  has  been  made  known  to  him.  And  it  is,  therefore, 
proper  to  make  a  distinct  declaration  on  the  subject,  lest  after  the 
death  of  the  undersigned,  these  incautious  conversations  might  be 
used  for  purposes  never  in  his  contemplation  and  adverse  to  the 
views  of  the  testator.  Wherefore,  now  know  ye,  that  in  order  to 
promote  and  accomplish  the  views  of  the  testator,  I,  the  undersigned 
John  Hoge,  trustee  as  aforesaid,  do  hereby  grant,  bargain  and  trans- 
fer unto  William  Hoge,  son  of  David  Hoge,  Esq.  of  Steubenville,  in 
the  state  of  Ohio,  and  his  male  heirs  and  assigns,  the  whole  of  my 
right,  title,  interest  and  estate,  in  the  premises  devised  as  aforesaid, 
with  all  the  hereditaments  and  appurtenances  thereunto  belonging. 
To  have  and  to  hold  the  said  premises  to  the  said  William  Hoge,  son 
of  David  Hoge,  to  the  only  proper  use  and  behoof  of  him  the  said 
William  Hoge,  son  of  David,  his  male  heirs  and  assigns  for  ever ; 
subject,  nevertheless,  to  a  full  and  absolute  power  hereby  reserved 
and  granted  to  the  said  David  Hoge,  Esq.,  to  have  and  enjoy  during 
his  natural  life,  the  whole  of  the  premises  so  devised,  and  also  with 
full  power  and  authority,  if  he  should  deem  it  proper  and  necessary, 


Sept.  1832.]  OF  PENNSYLVANIA.  1G9 

[Hoge  v.  Hoge.] 

to  sell  and  dispose  of  or  otherwise  use  the  same  for  the  education 
and  advancement  in  life  of  his  male  children  only,  and  particularly 
of  the  said  William,  his  son.  And  I  do  hereby  relinquish  all  power, 
control  and  interest  in  the  property  or  estate  devised  to  me  for  the 
purpose  aforesaid.  In  testimony  whereof,  I  have  hereunto  set  my 
hand  and  seal,  this  twenty-fourth  day  of  August,  in  the  year  of  our 
Lord  one  thousand  eight  hundred  and  twenty." 

Acknowledged  before  James  Blaine,  justice  of  the  peace  of  Wash- 
ington county,  Pennsylvania,  the  same  day,  and  recorded  the  29th 
day  of  the  same  month. 

The  deposition  of  John  Hoge  was  next  read  in  evidence,  in  which 
he  testifies :  that  he  is  no  way  interested  in  the  result  of  the  suit 
brought  by  William  Hoge  against  Samuel  Lyon.  That  he  never 
intended  to  profit  himself  by  the  devise  made  by  his  brother  William 
Hoge  to  him,  of  one  third  of  his  real  estate,  and  never  felt  any  inter- 
est in  it  further  than  what  is  to  be  derived  from  the  pleasure  of  be- 
stowing on  merit.  That  he  knew  that  his  brother  William  had  the 
utmost  confidence  in  him,  and  believes  it  was  that  confidence  as  well 
as  affection,  that  induced  his  brother  to  make  the  devise,  but  he 
never  could  be  certain  from  any  information  received  from  Mr 
M'G-iffin,  or  otherwise,  until  he  heard  his  testimony  on  the  12th  of 
August  1820,  that  the  devise  to  the  deponent  was  in  trust;  and 
deponent  therefore  never  could  say  that  it  was  a  trust  estate  for  the 
use  of  any  one,  though  he  knows  he  did  designedly  insinuate  some- 
thing like  it,  as  he  had  no  fear  that  young  William  would  or  could 
claim  all,  especially  as  deponent  knew  that  all  aid  had  been  repeat- 
edly refused  for  him  in  the  deponent's  brother's  lifetime.  And  as  a 
trust  had  been  spoken  of  in  the  country,  deponent  did  apprehend 
that  if  others  instituted  an  inquiry,  that  he  might  by  some  legal  con- 
struction be  obliged  to  exclude  young  William  altogether,  and  there- 
fore often  said  that  one  third  of  the  devise  to  deponent  was  for  him 
at  any  rate.  But  after  Mr  M 'Corn's  offer  to  purchase,  without 
mentioning  the  trust,  all  doubt  on  the  subject  vanished,  and  depo- 
nent never  spoke  or  thought  of  a  trust  afterwards,  because  he  believed 
if  Mr  M'Gijjin  would  purchase,  he  had  heard  nothing  which  would 
militate  against  the  views  of  the  deponent ;  and  until  the  testimony 
of  Mr  M'Gijftn  was  taken  before  James  Blaine,  Esq.  on  the  12th,  as 
before  stated,  the  deponent  believed  that  he  had  full  power,  what- 
ever doubts  might  be  entertained  by  others,  over  the  estate  ;  and  that 
the  confidence  or  trust  reposed  in  him  by  his  brother,  was  a  confidence 
that  he  would  dispose  of  the  estate  devised,  in  the  same  manner  that 
he  would  of  his  other  property,  viz.  to  the  most  promising  male  or 
males  of  the  family,  for  the  establishment  of  a  male  branch  or 
branches,  and  thus  give  a  fixed  habitation  and  preserve  the  name  in 
the  country.  Under  the  persuasion  that  he,  the  deponent,  was  not 
limited  by  any  trust,  he  had  determined  on  the  manner  in  which  he 
would  bestow  the  estate  ;  which  was,  one  third  to  young  William, 
who  now  claims  the  whole  as  a  trust  estate ;  and  the  remaining  two 
w 


170  SUPREME  COURT  [Pittsburgh, 

[Hoge  v.  Hoge.] 

thirds  to  his  brother  David,  who  had  not  been  provided  sufficiently 
for  by  his  father,  or  otherwise  such  part  of  the  two  thirds  to  him  as 
would  enable  him  to  educate  his  sons  and  fit  them  for  the  world, 
reserving  any  balance  that  might  be  to  bestow  on  such  one  of  his 
sons  as  should  appear  to  him  to  merit  most  hereafter.  With  this 
view,  deponent  was  much  pleased  with  Mr  M'GiJfiri's  offer  to  pur- 
chase, not  only  because  it  would  enable  deponent  to  provide  imme- 
diately for  young  William,  but  also  because,  in  his  mind,  it  did  away 
the  idea  of  a  trust,  of  which  there  might  be  doubts,  and  which  had 
been  spoken  of  in  the  country.  Such  was  the  anxiety  of  deponent 
to  provide  immediately  for  young  William,  that  when  Mr  M'Giffin 
declined  to  purchase,  and  the  change  of  times  forbade  the  prospect  of 
a  sale  for  money,  he  commenced  operations  to  induce  a  wealthy 
merchant  to  purchase,  and  designed  to  offer  to  take  one  third  of  the 
price  in  goods,  which  he  meant  to  bestow  on  young  William,  and 
credit  the  balance  to  suit  the  purchaser's  convenience,  and  he  en- 
gaged Mr  Campbell  to  procure  a  division  of  the  estate,  that  he  might 
be  enabled  to  close  a  bargain,  if  a  purchaser  offered  for  the  land. 
That  the  deponent  had  taken  young  William,  without  education, 
character  or  friends,  and  fitted  him  for  the  world,  and  must  feel  for 
his  comfort  and  prosperity  in  it ;  and  the  deponent  was,  therefore, 
sorry  when  he  heard  the  testimony  of  Mr  M'Gijfin,  relative  to  the 
trust,  as  it  obliged  him,  against  his  will,  to  change  his  course  and  be 
bound  by  the  wishes  of  the  testator.  These  wishes  the  deponent 
must  collect  from  a  variety  of  conversations  which  he  had  with  the 
testator,  as  he  has  no  other  direction  on  the  subject.  The  deponent 
states,  that  his  deceased  brother  William  and  himself  were  in  the 
habit  of  the  most  friendly  communication  of  opinion,  and  he  never, 
on  any  occasion,  omitted  to  press  upon  his  brother  the  propriety  and 
duty  of  doing  something  for  young  William;  he  even  ridiculed  the 
distinction  between  legitimate  and  illegitimate  children ;  and  the 
deponent  declares  that  his  brother  never  on  any  occasion  consented 
to  do  any  thing,  except  furnishing  a  horse,  saddle  and  bridle,  after 
he,  the  deponent,  had  succeeded  in  getting  young  William  appointed 
to  an  office,  which  required  a  horse  when  called  on  a  tour  of  militia 
duty.  The  deponent  further  states  that  he  has  spoken  with  differ- 
ent persons  of  the  pains  he  took  with  his  brother  on  the  subject,  and 
he  finds  by  the  testimony  he  heard  on  the  12th,  that  he  has  been 
very  much  misunderstood.  Mr  Swearingen,  one  of  the  witnesses, 
said,  allowance  ought  to  be  made  for  him  on  account  of  the  distance 
of  time,  his  age  and  bad  hearing ;  and  the  deponent  must  ascribe 
the  gross  mistakes  of  others  to  his  blundering  attempts  to  serve  young 
William,  and  their  inattention  to  his  observations,  for  it  might  be 
unfair  to  ascribe  their  mistakes  to  a  worse  motive.  The  objections 
of  the  deponent's  brother  William,  he  states  positively,  were  always 
against  making  any  provision  for  young  William,  and  not  as  to  the 
mode  of  doing  it ;  and  the  deponent  could  not  say,  with  truth,  that 
the  deceased  was  willing  to  provide  for  him,  for  he  was  always  un- 


Sept.  1832.]  OF  PENNSYLVANIA.  171 

[Hoge  v.  Hoge.] 

willing ;  and  if  it  had  not  been  for  this  unwillingness,  deponent 
would  have  had  young  William  provided  for  long  before  his  brother's 
death.  The  deponent's  brother  often  urged,  in  conversations  had 
with  him,  when  pressed  hard,  that  young  men  did  as  well  generally 
without  patrimony  as  with  it ;  that  estates  in  prospect  did  great 
mischief;  that,  at  any  rate,  he  was  not  bound  to  do  any  thing,  for, 
from  the  infamous  character  and  profession  of  the  mother,  young 
William  had  as  great  a  chance  to  be  son  of  any  one  among  twenty 
or  more,  as  to  be  his  ;  and  that  if  there  was  no  other  reason,  this 
last  was  sufficient — that  he  could  not  give  money ;  and  personal 
property  such  as  he  had,  would  be  of  no  use  ;  and  that,  in  a  word, 
he  was  determined  to  do  nothing.  And  the  deponent  says  positively, 
that  his  brother  and  himself  never  spoke  of  a  devise  to  young  Wil- 
liam, nor  to  any  other  person,  nor  had  he  the  most  remote  no- 
tion of  his  brother's  death,  or  any  prospect  of  outliving  him,  who 
was  a  very  temperate  man ;  nor  did  the  idea  ever  enter  depo- 
nent's head,  that  any  of  the  conversations  with  his  brother  had 
any  view  to  his  death  until  after  his  will  was  made  and  he  un- 
able to  converse  much  on  any  subject,  when  it  occurred  to  de- 
ponent's mind  that  perhaps  some  of  his  brother's  last  observations 
relative  to  the  division  of  estates,  had  that  event  in  view.  .  So 
far  was  the  deponent  from  knowing  of  any  thing  intended  to  be 
comprised  in  his  brother's  will,  that  the  first  intimation  he  had  of  a 
will  at  all,  or  of  being  considered  in  it,  was  from  Jlndrew  M'Clure, 
after  his  brother's  death,  to  whom  the  deponent  immediately  said  he 
was  glad  of  it,  as  it  would  enable  him  to  provide  for  young  William 
and  others  who  had  been  neglected.  The  last  conversation  which 
the  deponent  had  with  his  brother  in  relation  to  young  William,  or 
indeed  on  any  other  subject,  was  the  day  before  he  set  out  to  Fa- 
yette  county  for  merino  sheep  ;  and  the  same  day  he  wrote  for  Doc- 
tor Wilson,  of  Steubenville,  to  attend  his  brother,  about  a  week  before 
his  death.  He  was  then  in  no  apparent  danger,  but  had  no  confi- 
dence in  the  physicians  of  Washington,  and  the  deponent  thought  it 
best  to  have  the  aid  of  some  one.  Previous  to  this  last  conversation, 
deponent  had  on  several  occasions  suggested  the  -propriety  of  giving 
to  young  William  a  lot,  and  assisting  him  a  little  to  sink  a  lanyard 
and  commence  business,  being  a  tanner  by  trade  ;  which,  as  the  de- 
ponent has  stated,  his  brother  always  refused  to  do.  In  this  last 
conversation,  only  about  a  week  before  his  death,  the  deponent  sug- 
gested the  giving  to  young  William  a  piece  of  ground,  at  which  de- 
ponent's brother  became  angry,  and  said,  "  Do  you  think  I  would 
give  part  of  this  estate  to  Peg  Treanour's  son ;  no,  this  I  got  from 
my  father,  and  I  have  no  right  to  divert  it  from  the  family."  De- 
ponent interposed,  and  assured  him  that  it  was  a  piece  of  out-land 
that  was  meant,  which  would  suit  for  a  tanyard  for  a  beginner. 
He  became  cool,  and  said  he  had  no  land  of  the  kind  ;  but  added, 
"  As  you  appear  to  be  so  much  interested  on  this  subject,  you  had 
better  give  some  land  yourself."  Deponent  then  answered  he  would, 


172  SUPREME  COURT  [Pittsburgh, 

[Hoge  v.  Hoge.] 

if  his  brother  would  exchange  some  land  with  him  or  repay  him  in 
any  way ;  and  that  if  the  deceased  was  unwilling,  from  any  family 
cause  unknown  to  deponent,  to  do  any  thing  publicly  for  young  Wil- 
liam, and  would  authorize  deponent  and  provide  the  means,  that 
deponent  would  apply  them  sparingly,  and  only  as  the  young  man's 
merit  would  justify  ;  but  a  devise,  as  staled  by  Mr  M'Giffin,  was  not 
mentioned  or  thought  of  by  deponent  on  this  or  any  other  occasion. 
Deponent's  brother,  on  this  last  effort  made  for  young  William,  point- 
edly refused  to  do  any  thing,  as  he  had  always  done  before,  and  beg- 
ged that  deponent  would  not  introduce  the  subject  again.  This  was 
about  a  week  before  his  death,  and  when  the  deponent  returned 
from  Fayette,  his  brother's  will  was  made  without  any  concert  with 
him,  or  the  probability  of  having  any;  nor  did  his  brother,  either  be- 
fore or  after  the  will  was  made,  speak  of  it  or  say  one  favourable  word 
of  young  William.  There  certainly  was  no  trust  in  favour  of  young 
William,  to  the  knowledge  of  the  deponent ;  but  on  the  contrary,  as 
appears  by  the  conversations  stated,  he  was  always  excluded  from 
any  aid,  sometimes  with  anger,  and  always  with  firmness,  accom- 
panied often  with  a  denial  of  the  relationship;  and  on  this  last  occa- 
sion deponent  was  forbidden  to  mention  his  name  again,  and  this,  as  is 
stated,  about  a  week  before  the  death  of  the  testator.  These  things 
deponent  certainly  stated  in  part  to  Mr  M'Giffin,  perhaps  confusedly 
and  avoiding  the  strong  objections  his  brother  had  to  young  William, 
because  deponent  was  afraid  of  his  exclusion,  not  of  his  taking  all, 
in  case  the  confidence  in  deponent,  as  expressed  to  Mr  Jlf' Giffin,  by 
his  brother,  amounted  to  a  trust  in  law.  The  terms  of  the  trust 
could  be  known  to  no  one  but  deponent,  and  as  he  did  not  then  be- 
lieve the  confidence  so  expressed  by  his  brother  amounted  to  a  trust, 
he  did  not  think  himself  called  on  to  state  the  strong  objections  of 
his  brother  to  young  William.  And  the  deponent  felt  confident,  as 
he  did  still  until  he  heard  Mr  M'Gijfirfs  testimony,  that  his  brother 
did  not  mean  to  confine  his  power,  but  left  him  free  to  act  as  he 
would  with  his  other  property.  The  deponent  states  that  his  con- 
versations must  have  been  misunderstood,  and  have  been  conse- 
quently misrepresented.  One  error  is,  by  ascribing  his  observations 
to  his  brother,  and  another  great  one  is  by  supposing  any  of  his  con- 
versations with  his  brother  related  to  the  final  disposition  of  his 
estate,  when  they  referred  exclusively,  so  far  as  young  William  is 
concerned,  to  some  small  beginning  for  him.  Deponent  further 
states,  that  he  is  not  surprised,  when  such  a  man  as  Mr  M^  Giffin 
misunderstood  him,  at  the  gross  testimony  of  Graham  and  Morgan, 
to  whom  he  might  have  said,  before  Mr  M^ Giffin  offered  to  pur- 
chase, that  if  the  devise  made  to  him  was  in  trust,  one-third  of  it 
should  go  to  young  William;  thus  insinuating  that  the  trust  was 
for  him ;  but  more  the  deponent  did  not  say,  and  never  on  any  occa- 
sion went  further  than  insinuation  in  favour  of  young  William,  as 
this  deponent  thinks  and  believes.  The  appointment  of  Mr  M'Gif- 
fin  as  an  executor,  would  seem  from  the  testimony  to  be  the  result 


Sept.  1832.]  OF  PENNSYLVANIA.  173 

[Hoge  v.  Hoge.] 

of  a  recommendation  made  by  the  deponent  to  his  brother  of  Mr 
M'Giffin  as  such,  than  which  nothing  can  be  more  untrue;  when  it 
may  be  true  that  the  deponent  indirectly  contributed  to  it,  and  may 
have  said  so,  but  if  he  did,  it  was  by  his  constant  recommendation 
of  Mr  M'Giflin  to  his  brother  and  others,  as  a  young  man  of  honour, 
who  promised  well ;  and  if  Messrs  Cook  and  Huston  were  dead  before 
his  brother,  Mr  M'GiJjin  being  executor  for  them,  at  least  one  of 
them,  by  deponent's  advice,  might  have  been  mentioned  by  him  in 
conversation  to  his  brother,  but  he  never  could  have  suggested  Mr 
M'Gijfiri's  name  in  any  other  way,  because  deponent  and  his  brother 
never  spoke  of  a  will,  nor  did  deponent  know  that  his  brother  intended 
to  make  one. 

The  deponent  further  states,  that  he  recollects  the  conversation  he 
had  with  Mr  M'Giffin,  in  which  it  is  alleged  that  the  trust  was 
mentioned,  and  now  positively  declares  that  he  heard  no  such  ex- 
pression, whatever  Mr  WGiffin  may  have  said  or  intended  to  say. 
If  a  trust,  in  words,  had  been  mentioned  and  heard,  the  deponent 
would  have  attended  to  it,  because  it  would  have  defeated  his  pri- 
vate object  of  providing  for  young  William.  Deponent  minds  Mr 
M'Giffiri's  words  on  that  occasion.  They  were  these,  he  said, 
when  the  deponent's  brother  mentioned  the  devise  to  him,  there 
was  a  pause,  that  he,  Mr  M'Gijfin  looked  at  deceased  and  said, 
"  What,  is  there  nothing  more  ]  no,  was  the  answer,  I  have  full  con- 
fidence in  my  brother  John;"  and  deponent  now  avers  that  this  is 
all  he  heard  of  the  trust  from  Mr  M'Gijfin  until  he  heard  his  testi- 
mony. The  deponent  states,  he  understood  the  confidence  as  above 
expressed,  referred  to  his  conversations  with  his  brother  on  the  policy 
of  Pennsylvania,  and  he  is  sure  if  he  had  heard  the  word  "  trust" 
mentioned,  he  would  have  recollected  it,  because  he  immediately 
revolved  in  his  own  mind,  whether  he  could  not  gratify  his  wishes  in 
relation  to  young  William,  and  yet  substantially  comply  with  the  ex- 
pectations of  his  brother,  especially  if  William  should  have  male  issue. 
The  many  conversations  which  deponent  had  with  his  brother,  from 
which  any  limitations  to  his  power  over  the  estate  can  be  inferred, 
relate  principally  to  the  policy  in  Pennsylvania  of  dividing  estates, 
which  both  disapproved  of,  as  calculated  to  destroy  or  prevent  the 
establishment  of  a  national  character ;  and  deponent  and  his  brother 
both  concurred  in  the  opinion,  that  national  character  could  not  be 
established  without  the  preservation  of  family  name,  which  only 
could  be  preserved  by  giving  the  real  estate  to  the  oldest  son,  and 
providing  for  the  other  brothers  in  the  navy,  army,  learned  professions 
or  manufacturing  establishments  ;  and  at  all  events,  the  real  estate 
should  never  go  to  the  females.  This  was  a  favourite  topic  with 
him,  and  deponent  and  his  brother  never  met  latterly  but  it  was 
mentioned.  It  was  the  principal  theme  of  conversation  the  last 
time  deponent  had  any  with  his  brother,  and  when  deponent  was 
about  leaving  him,  he  followed  deponent  to  the  room  door,  and  asked 
with  earnestness  if  "  we  understood  each  other  on  that  subject  *?" 


174  SUPREME  COURT  [Pittsburgh, 

[Hoge  v.  Hoge.] 

The  deponent  assured  him  that  he  had  spoken  his  mind  freely  and 
without  disguise,  when  his  brother  said,  "  Then  I  am  satisfied,"  and 
deponent  left  him  to  go' to  Fayette,  and  did  not  see  him  again  until 
after  his  will  was  made,  and  he  on  the  very  verge  of  life.  The  de- 
ponent believes  that  these  conversations  on  the  subject  of  estates, 
inspired  his  brother  with  confidence  in  him  relative  to  the  final  dis- 
position of  the  estate  ;  and  though  the  devise  may  be  a  trust  in  law, 
and  must  be  so  considered  on  Mr  M'Giffirfs  testimony,  yet  the  de- 
ponent believes  the  design  of  the  testator  was  to  leave  the  selection 
of  the  object  of  the  bounty  to  his  choice,  as  character  should  be  un- 
folded, having  confidence  that  he  would  select  such  one  or  more  of 
the  males  who  promised  the  fairest  to  continue  the  family  name ; 
and  hence  it  must  be  that  the  testator  said  to  Mr  M'Gijjin,  "  that  it 
could  be  done  in  no  other  way,  and  that  he  had  full  confidence  in 
his  brother  John;"  for  it  is  futile  to  suppose  he  referred  to  young 
William,  as  deponent  was  the  trustee,  to  whom  he  had  rejected  every 
proposition  for  aid  to  the  young  man.  Deponent  further  says,  that 
his  brother  never  offered  any  exchange  of  property  with  him,  and 
Mr  Pentecost's  testimony  must  refer  to  an  application  to  him  by 
young  William  to  purchase  a  tanyard  then  to  be  sold  near  Wheel- 
ing, which  deponent  told  Pentecost  he  could  not  spare  money  or  pro- 
perty to  make,  and  that  the  young  man  must  wait  the  death  or 
marriage  of  Mrs  Hoge,  when  he  meant  to  give  one  third  of  the  de- 
vise to  him.  The  deponent  states  again,  that  there  was  no  trust,  or 
understanding  between  his  brother  and  him,  favourable  to  young 
William  ;  but  on  the  contrary,  all  aid  was  absolutely  refused.  That 
deponent  now  believes  that  his  concealment  of  his  brother's  conver- 
sations relative  to  young  William,  when  coupled  with  deponent's  in- 
sinuations that  he  was  provided  for  in  the  will,  has  contributed  in 
some  degree  to  the  testimony  given,  and,  for  want  of  due  confidence, 
has  caused  the  present  suit ;  and  deponent  can  only  justify  himself 
from  his  strong  wish  to  serve  young  William,  and  his  impression  that 
the  devise  was  not  a  trust,  whatever  the  law  might  make  of  it ;  but 
it  now  appears  it  was  a  trust  reposed  in  him  by  his  brother,  in  confi- 
dence that  he  would  attend  to  a  family  establishment,  which  his 
brother  discovered  could  not  be  done  by  himself,  as  he  was  about  to 
be  cut  off  before  the  characters  of  his  nephews  were  developed,  and 
therefore,  as  he  told  Mr  M'Gijfin,  it  could  be  done  in  no  other  way. 
David  Morris  was  affirmed  ;  and  testified :  that  very  shortly  after 
the  death  of  William  Hoge,  his  brother  John  came  to  affirmant's 
house,  when  affirmant  asked  John  Hoge  if  his  brother  William  had 
made  a  will ;  he  replied  that  he  had,  and  had  given  one  third  of 
his  real  estate  to  his  brother  David's  male  heirs,  another  third  to  his 
brother  Jonathans  male  heirs,  and  the  remaining  third  to  himself. 
AfBrmant  then  inquired  if  he  had  left  nothing  to  his  son  William 
(the  plaintiff).  He  said  he  had  not ;  that  he  had  often  solicited 
his  brother  William  to  give  young  William  something,  but  he  had 
always  refused  and  persisted  in  it  till  the  last.  This  was  the  first 


Sept.  1832.]  OF  PENNSYLVANIA.  175 

[Hoge  v.  Hogo.] 

time  that  I  saw  John  Hoge  after  the  death  of  his  brother ;  it  was 
but  a  few  days  after  his  death  ;  within  a  week  any  how. 

The  defendants  then  gave  in  evidence  the  record  of  an  action  of 
ejectment,  commenced  in  the  court  below,  to  April  term  1820,  by 
the  plaintiff,  against  Samuel  Lyon,  then  tenant  in  possession  of  the 
land  in  dispute,  which  was  referred  to  arbitrators  mutually  chosen 
by  the  parties,  and  on  the  29th  of  August  1820,  was  discontinued 
by  the  plaintiff. 

The  defendants  gave  in  evidence  a  deed  of  conveyance  and  re- 
lease from  the  plaintiff  and  his  wife,  dated  August  the  29th  1820,  to 
David  Hoge,  in  the  following  words,  to  wit :  "  this  indenture,  made 
and  entered  into,  between  William  Hoge  and  Sophia  his  wife,  of  the 
borough  of  Washington,  county  of  Washington,  and  state  of  Penn- 
sylvania, of  the  one  part,  and  David  Hoge,  of  the  borough  of  Steu- 
benville  and  state  of  Ohio,  of  the  other  part,  witnesseth — that  the 
said  William  Hoge  and  Sophia  his  wife,  for  and  in  consideration  of 
3000  dollars,  to  them  in  hand  well  and  truly  paid,  by  the  said  David 
Hoge,  the  receipt  whereof  is  hereby  acknowledged,  have  remised, 
released,  granted,  bargained  and  sold,  and  do  hereby  grant,  bargain 
and  sell,  remise  and  release,  and  for  ever  quit  claim,  unto  the  said 
David  Hoge,  his  heirs  and  assigns  for  ever,  all  the  right,  title,  inte- 
rest or  claim  of  them,  the  said  William  and  Sophia,  of,  in  or  to  all 
and  every  part  of  the  real,  personal  or  mixed  estate  of  the  late  Wil- 
liam Hoge,  brother  of  the  said  David.  To  have  and  to  hold  the  pre- 
mises hereby  granted  and  released,  or  intended  to  be  so  granted  and 
released,  unto  the  said  David  Hoge,  his  heirs  and  assigns  for  ever, 
together  with  all  and  singular  the  buildings,  rights  or  appurtenances 
thereunto  belonging*  or  appertaining.  And  the  said  William  and 
Sophia  his  wife  do  hereby  covenant  to  warrant  and  defend  the  same, 
to  the  said  David  Hoge,  his  heirs  and  assigns,  against  them,  the  said 
William  and  Sophia,  their  heirs  and  assigns  for  ever.  In  witness 
whereof  the  said  William  and  Sophia  have  hereunto  set  their  hands 
and  seals,  this  twenty-ninth  day  of  August,  in  the  year  of  our  Lord 
one  thousand  eight  hundred  and  twenty." 

Acknowledged  the  same  day  before  James  Blaine,  a  justice  of  the 
peace,  and  recorded  on  the  same  da^~. 

A  bond  which  had  been  executed  at  the  same  time  with  the  deed 
of  conveyance  last  aforesaid,  and  bearing  even  date  therewith,  by 
David  Hoge  to  the  plaintiff,  in  the  sum  of  8000  dollars,  conditioned 
for  the  said  David  Hoge's  conveying  in  fee  simple  to  the  said  plain- 
tiff four  hundred  acres  of  land,  situated  on  Cool  Spring  Creek,  or  the 
waters  thereof,  above  Benjamin  Stokely,  in  the  county  of  Mercer  and 
state  of  Pennsylvania,  so  soon  as  a  selection  thereof  and  survey 
should  be  made  by  the  said  plaintiff,  or  within  a  reasonable  time 
thereafter,  attested  by  Parker  Campbell  and  T.  M.  T.  M'Kennan, 
was  given  in  evidence. 

The  condition  of  this  bond  had  been  performed  by  David  Hoge, 
taken  up  by  him  and  cancelled.  A  certified  copy  of  the  deed  of  con- 


176  SUPREME  COURT  [Pittsburgh, 

[Hoge  v.  Hoge.] 

veyance,  which  had  been  executed  by  David  Hoge  and  Jane  his  wife, 
to  the  plaintiff,  dated  October  4th  1821,  in  fulfilment  of  the  condition 
of  said  bond,  whereby  the  said  four  hundred  acres  were  conveyed  in 
fee  simple  to  the  plaintiff,  was  then  read  in  evidence. 

A  certified  copy  was  then  given  in  evidence,  of  a  deed  of  convey- 
ance in  fee  simple,  from  the  plaintiff  and  his  wife  to  William  Zahniser, 
dated  the  22d  day  of  November,  A.  D.  1821,  for  one  hundred  and 
twenty-five  acres  and  thirty  perches,  part  of  the  aforesaid  four  hun- 
dred acres — consideration  500  dollars  and  75  cents;  as  also  a  certified 
copy  of  a  deed  of  conveyance  from  the  plaintiff  and  wife,  conveying 
the  residue  of  the  said  four  hundred  acres  to  William  North,  in  fee 
simple,  for  the  consideration  of  440  dollars,  and  dated  the  18th  day  of 
March  1822. 

These  deeds  were  all  recorded  in  the  recorder's  office  of  Mercer 
county,  Pennsylvania. 

Thomas  M.  T.  M'Kennan,  Esq.  then  testified  that  he  and  William 
Saird  were  counsel  for  the  plaintiff  in  the  former  action  of  ejectment 
brought  for  the  land  in  dispute.  That  that  suit  was  compromised, 
and  that  the  deed  of  conveyance  and  release  read  in  evidence,  from 
the  plaintiff  and  his  wife  to  David  Hoge,  and  the  bond  aforesaid, 
given  by  the  said  David  to  the  plaintiff,  were  given  and  executed  in 
pursuance  of  the  agreement  of  compromise,  which  then  took  place 
between  them  in  relation  to  the  land  in  dispute,  and  that  the  former 
action  of  ejectment  was  discontinued  also  in  pursuance  thereof.  The 
compromise  was  made  upon  a  trial  of  the  cause  before  arbitrators, 
and  after  the  testimony,  as  witness  believed,  had  been  gone  through 
on  both  sides.  The  compromise  was  made  between  the  parties  with 
the  approbation  of  the  counsel  of  both  sides. 

The  defendants'  counsel  requested  the  court  to  charge  the  jury 
upon  these  points.  1st.  That  the  devise  of  one-third  of  the  real  estate 
of  the  testator,  William  Hoge,  being  given  to  John  Hoge,  in  fee  sim- 
ple, absolute,  and  without  any  trust  being  mentioned  in  or  on  the 
face  of  the  will  itself,  it  cannot  be  established  by  the  declarations  or 
communications  of  the  testator  to  the  person  who  drew  the  will,  that 
it  was  a  trust ;  but  that  he  must  leave  it  to  the  devisee  to  dispose  of 
it,  as  he  had  confidence  in  him,  and  did  not  say  for  whom  the  trust 
was  designed;  nor  can  a  trust  in  connexion  with  such  declarations  of 
the  testator  be  established  by  the  subsequent  declarations  of  the  de- 
visee in  the  will,  made  after  the  death  of  the  testator,  that  it  was 
given  to  him  in  trust  for  the  plaintiff. 

2.  That  a  trust  cannot  be  created  and  established  contrary  to  the 
face  of  the  will,  by  the  parol  declarations  of  the  testator,  or  the  parol 
declarations  of  the  devisee  named  in  the  will,  or  by  both  in  conjunc- 
tion. 

3.  That  every  devise  to  the  person  named  in  the  will,  imports  a 
consideration ;  and,  therefore,  no  averment  contradicting  the  idea 
that  the  devise  was  not  intended  exclusively  for  the  benefit  of  the 
devisee  so  named,  can  prevail  or  defeat  the  devise  in  the  will. 


Sept.  1832.]  OF  PENNSYLVANIA.  177 

[Hoge  v.  Hoge.] 

4.  That  the  plaintiff,  although  he  may  be  an  illegitimate  son  of 
the  testator,  is,  notwithstanding,  to  be  considered  as  a  mere  stranger: 
that  no  such  relationship  existed  thereby,  as  could  either  in  law  or 
equity  form  a  good,  much  less  a  valuable  consideration  ;  and  that, 
had  the  testator,   or  John  Hodge  the  devisee  named  in  the  will, 
made  a  contract  without  other  consideration,  to  convey  the  land  in 
dispute  to  the  plaintiff,  it  would  not  avail  or  give  the  plaintiff  any 
right  to  the  land. 

5.  That  if  the  plaintiff  even  had  any  equitable  claim  to  the  land 
in  dispute,  any  unreasonable  delay  on  his  part  to  prosecute  the 
claim,  will  in  equity,  as  well  as  law,  be  sufficient  to  defeat  it. 

6.  That  the  compromise  made  in  this  case,  during  the  pendency 
of  the  former  action  of  ejectment,  by  the  plaintiff,  for  the  land  in 
dispute,  by  which  that  action  was  discontinued  by  the  plaintiff,  and 
the  plaintiff  released  his  claim  thereto  to  David  Hoge,  is  a  bar  to  the 
plaintiff  recovering  the  land  in  this  action,  if  fairly  made  without 
any  fraud  committed  by  David  Hoge  on  the  plaintiff. 

7.  That  the  compromise  will  be  good  and  binding  on  both  parties, 
even  if  it  should  be  that  the  party  releasing  his  right  had  the  better 
title.     It  is  sufficient  that  there  was  a  real  dispute. 

8.  If  the  plaintiff  has  received  a  conveyance,  and  a  title  thereby 
to  four  hundred  acres  of  land  in  Mercer  county  of  this  state,  on  the 
faith  of  the  compromise,  and  as  a  part  of  the  agreement  of  the  com- 
promise itself,  were  the  compromise  even  void  on  account  of  fraud, 
the  plaintiff  could  not  rescind  and  set  aside  the  compromise  for  that 
reason,  without  reconveying  and  reinvesting  David  Hoge  with  the 
title  to  the  land,  so  conveyed  by  the  said  David  Hoge  to  the  plain- 
tiff, and  that  without  this  being  previously  done  by  the  plaintiff,  he 
cannot  recover  the  land  in  dispute  in  this  action. 

9.  Unless  fraud  has  been  proved  to  have  been  practised  by  David 
Hoge  upon  the  plaintiff,  in  making  the  compromise,  it  is  good  and 
binding  upon  the  plaintiff,  and  bars  him  of  this  action. 

10.  That  even  supposing  John  Hoge  had  perjured  himself  in  the 
testimony  which  he  gave  before  the  arbitrators,  by  whom  the  former 
action  of  ejectment  brought  for  the  land  in  dispute  was  to  be  tried, 
and  David  Hoge  had  no  knowledge  or  reason  to  believe  that  it  was 
so,  that  would  not  avoid  the  agreement  of  compromise ;  that  the 
plaintiff  would  be  bound  by  it,  and  barred  by  it  from  recovering  in 
this  action. 

11.  That  if  such  perjury  would  be  sufficient  to  avoid  the  agree- 
ment of  compromise,  yet  it  could  not  be  done  without  putting  David 
Hoge  in  the  same  state  and  condition  that  he  was  in  at  and  before 
the  time  of  compromise,  by  restoring  to  him  the  land  in  Mercer 
county,  which  he  conveyed  to  the  plaintiff  in  pursuance  of  the  agree- 
ment of  compromise. 

The  plaintiff  requested  the  court  to  charge  the  jury:  1.  That  the 
defendant,  taking  under  John  Hoge  as  a  volunteer,  stands  in  his 


178  SUPREME  COURT  [Pittsburgh, 

/ 

[Hoge  v.  Hoge.] 

shoes,  and  consequently,  if  John  Hoge  was  a  trustee  for  the  plaintiff, 
the  defendant  is  a  trustee  also. 

2.  That  if  the  jury  believe  that  the  release  made  to  David  Hoge 
by  the  plaintiff,  was  obtained  through  the  misrepresentations  of  John 
Hoge,  and  in  consequence  of  the  influence  of  his  testimony,  and  the 
persuasion  of  the  arbitrators,  it  is  not  binding. 

3.  That  if  the  release  was  procured  or  induced  by  the  fraud,  false- 
hood, imposition  or  influence  of  John  Hoge,  it  is  void,  however  inno- 
cent David  Hoge  may  be. 

4.  ThaU  if  obtained  through  oppression,  in  consequence  of  the 
plaintiff  being  so  oppressed  with  his  situation  that  he  was  glad  to 
make  any  terms,  it  is  not  binding ;  and  that  great  inadequacy  of 
price  is  evidence  of  oppression,  and  that  the  mere  absence  of  fraud 
is  not  sufficient  to  sustain  the  release. 

5.  That  fraud  may  be  inferred  from  the  nature  and  circumstances 
of  the  transaction,  and  the  connexion  of  the  parties. 

6.  That  if  the  compromise  was  obtained  or  brought  about  by  the 
fraud  or  undue  influence  of  any  one,  it  is  not  binding. 

The  court  charged  the  jury — 

This  is  an  action  for  one  undivided  third  part  of  a  tract  of  land 
in  Canton  township,  adjoining  the  borough  of  Washington.  It  is 
admitted  that  the  late  William  Hoge,  Esq.  was  owner  of  the  land. 
He  made  his  will,  (jyrout  will),  in  which  he  devised  one  third  part  to 
the  male  heirs  of  his  brother  Jonathan  Hoge,  deceased,  one  third 
part  to  the  male  heirs  of  his  brother  David  Hoge,  and  the  remaining 
third  to  his  brother  John  Hoge.  This  last  is  the  part  in  dispute. 
Both  parties  claim  under  this  devise.  The  plaintiff  alleges  that  the 
testator  intended  this  part  of  his  estate  for  him,  he  being  his  illegiti- 
mate son  ;  and  that  the  devise  to  John  Hoge  was  in  trust  for  his 
benefit.  It  is  contended,  on  the  other  hand,  that  if  there  was  a 
trust,  it  was  in  confidence  that  John  Hoge  should  select  some  one  as 
the  recipient  of  the  benefit,  in  conformity  with  the  known  views 
and  wishes  of  the  testator  in  relation  to  the  transmission  of  the 
estate  to  support  the  family  name,  &c.  Defendant  claims  that 
John  Hoge  has  discharged  the  trust,  by  conveying  to  him,  &c. 

For  reasons  which  are  known  to  the  counsel,  it  is  not  our  inten- 
tion to  remark  at  all  upon  the  facts  of  this  case.  We  shall  leave 
them  entirely  to  you,  and  confine  ourselves  to  a  brief  notice  of  the 
legal  points  submitted  on  both  sides.  It  is  a  matter  of  regret  that 
we  have  not  had  time  to  examine  in  a  satisfactory  manner  the  many 
important  principles  involved.  We  are  relieved,  however,  by  the 
reflection,  that  our  errors  will  be  corrected  by  the  superior  tribunal 
to  which  it  will  no  doubt  be  removed. 

1st  point  submitted  by  plaintiff.  Answer.  The  defendant  taking 
under  John  Hoge,  stands  in  his  shoes  ;  and  if  John  Hoge  was  a  trus- 
tee for  plaintiff,  the  defendant  must  be  so  also.  He  is  not  a  pur- 
chaser for  a  valuable  consideration  without  notice.  (Deed  from 
John  Hoge  to  William  Hoge.) 


Sept.  1832.]  OF  PENNSYLVANIA.  179 

[Hoge  v.  Hoge.] 

1st,  2d,  and  3d  points  submitted  by  defendant's  counsel.  Answer. 
The  devise  of  one  third  of  the  real  estate  of  the  testator  William 
Hoge,  being  given  to  John  Hoge  in  fee  simple  absolute,  and  without 
any  trust  being  mentioned  in  or  on  the  face  of  the  will  itself,  it  can- 
not be  established  by  the  declarations  and  communications  of  the 
testator  to  the  person  who  drew  the  will,  that  it  was  a  trust,  but  that 
he  must  leave  it  to  the  devisee  to  dispose  of  it.  He  had  confidence 
in  him,  and  did  not  say  for  whom  the  trust  was  designed.  We 
think,  however,  that  in  connexion  with  such  declarations  of  the 
testator,  the  subsequent  parol  declarations  of  the  devisee,  clearly  and 
distinctly  expressed  after  the  death  of  the  testator,  that  it  was  given 
to  him  in  trust  for  the  plaintiff,  may  establish  such  trust,  if  fully 
proved  and  believed.  That  though  a  trust  cannot  be  created  and 
established  contrary  to  the  form  of  the  will,  by  the  parol  declarations 
of  the  testator,  or  by  the  parol  declarations  of  the  devisee,  separately 
and  alone  considered  ;  yet  both  of  them  in  conjunction,  if  proved, 
may  establish  such  trust.  No  averment  can  be  allowed  to  defeat  a 
will ;  but  the  question  here  is,  what  was  the  will  of  the  testator1? 

If  you  find,  from  the  parol  declarations  of  the  testator,  and  the 
parol  declarations  of  the  devisee,  which  we  have  allowed  in  evidence, 
that  William  Hoge,  the  testator,  did  intend  that  the  devise  to  John 
Hoge  should  be  for  the  use  and  benefit  of  William  Hoge  the  son — 
we  say  that  such  is  the  will  of  William  Hoge  the  testator,  and  it 
would  be  fraud  to  defeat  it,  and  John  Hoge  would  hold  as  a  trustee. 

4th.  To  the  fourth  proposition  of  the  defendant,  we  answer  gene- 
rally in  the  affirmative.  If,  however,  the  plaintiff  was  acknowledged 
by  the  testator  to  be  his  illegitimate  son,  he  was  under  a  moral  obli- 
gation to  provide  for  his  support  and  advancement.  This  may  be 
regarded  in  arriving  at  his  intent.  It  would  be  a  good  consideration 
for  a  devise. 

5th.  We  say  that  if  the  plaintiff  ever  had  an  equitable  claim  to 
the  land  in  dispute,  any  unreasonable  delay  on  his  part  to  prosecute 
the  claim,  will,  in  equity  as  well  as  law,  be  sufficient  to  defeat  it. 
We  do  not  say,  however,  that  such  unreasonable  delay  existed  in  the 
present  case  as  will  prevent  the  plaintiff  recovering. 

6th.  The  compromise  made  during  the  pendency  of  the  former 
ejectment  by  the  plaintiff  for  the  land  in  dispute,  by  which  that 
action  was  discontinued,  and  the  plaintiff  released  to  David  Hoge  his 
claim,  we  think  is  a  bar  to  the  plaintiff  recovering  the  land  in  this 
action,  if  fairly  made,  without  any  fraud  practised  by  David  Hoge  or 
(any  one  with  his  privity),  or  any  undue  advantage  taken  of  the 
plaintiff's  ignorance,  mistake  or  necessities. 

7th.  The  compromise  will  be  good  and  binding  on  both  parties, 
even  if  it  should  be  that  the  party  releasing  his  right  had  the  better 
title.  It  is  sufficient  that  there  was  a  real  dispute;  not  a  mere  pre- 
tended and  colourable  defence. 

Answer  to  second,  third,  fourth,  fifth  and  sixth  points  of  plaintiff, 
and  ninth  and  eleventh  of  defendant.  But  should  you  suppose  that 


180  SUPREME  COURT  [Pittsburgh, 

[Hoge  v.  Hoge.J 

the  release  made  to  David  Hoge  (prout  release)  by  plaintiff',  was  ob- 
tained through  the  misrepresentation  of  John  Hoge,  and  in  conse- 
quence of  the  influence  of  his  testimony  and  the  persuasions  of  the 
arbitrators,  it  is  not  binding,  if  David  Hoge  knew  of  such  misrepresen- 
tation, and  availed  himself  unduly  of  such  influence  and  persuasions. 

Again,  should  you  find  that  the  release  was  procured  or  induced 
by  the  fraud,  falsehood,  imposition  or  influence  of  John  Hoge,  it  is 
void,  however  innocent  David  Hoge  may  be,  if  the  agency  or  inter- 
ference of  John  Hoge  was  employed  to  effect  the  arrangement.  But 
if  David  Hoge  knew  of  no  such  misrepresentation,  nor  had  unfair 
advantage  from  such  influence  and  persuasions,  if  he  was  not  privy 
to  any  fraud,  falsehood  or  imposition  on  the  part  of  John  Hoge,  nor 
had  his  interference  in  effecting  the  compromise,  even  supposing  John 
Hoge  had  perjured  himself  in  the  testimony  which  he  gave  before  the 
arbitrators,  and  David  Hoge  had  no  knowledge  or  reason  to  believe 
it  was  so,  the  agreement  of  compromise  will  not  be  avoided.  The 
plaintiff  would  still  be  bound  by  it. 

The  circumstances  of  the  plaintiff  at  the  time  the  release  was 
given,  will  not  render  it  invalid,  unless  you  find  that  David  Hoge 
took  advantage  of  his  embarrassed  situation  to  drive  an  unconsciona- 
ble bargain,  contrary  to  justice  and  fairness.  In  such  case  the  mere 
absence  of  actual  fraud  is  not  sufficient  to  sustain  the  release.  In 
determining  the  question  of  fraud,  the  nature  and  circumstances  of 
the  transaction,  and  the  connexion  of  the  parties,  may  be  regarded. 
Gross  inadequacy  of  price  may  be  evidence,  connected  with  other 
circumstances,  of  overreaching. 

8th  and  llth  of  defendant.  If  the  plaintiff  has  received  a  con- 
veyance and  a  title  thereby  to  four  hundred  acres  of  land  in  Mer- 
cer county,  upon  the  faith  of  the  compromise,  and  as  a  part  of  the 
agreement,  and  the  compromise  were  void  on  account  of  fraud  in 
the  perjury  of  John  Hoge  at  the  trial  of  the  former  ejectment ;  yet 
the  plaintiff  cannot  rescind  and  set  aside  the  compromise,  without 
placing  David  Hoge  in  the  same,  or  as  good  a  condition,  as  he  was 
at  and  before  the  agreement,  by  restoring  to  him  the  land  in  Mer- 
cer county ;  or,  if  he  has  disposed  of  that  before  the  discovery  of  the 
fraud  or  perjury,  so  as  to  put  it  out  of  his  power  to  convey,  by  pay- 
ing to  him  the  fair  value  thereof.  This  must  be  done  before  he  can 
have  the  land  in  dispute.  But  if  you  should  find  for  the  plaintiff,  on 
the  other  points  of  the  case,  you  can  make  provision  in  your  verdict 
for  the  security  of  David  Hoge  in  this  particular. 

After  this  charge  of  the  court,  the  jury  found  a  verdict  for  the 
plaintiff,  possession  to  be  delivered  on  payment  or  tender  in  cash  of 
940  dollars  and  75  cents  to  the  defendant ;  upon  which  the  court  be- 
low rendered  a  judgment. 

Assignment  of  errors. 

1.  The  court  below  erred,  in  receiving  the  parol  evidence,  which 
went  to  alter  and  contradict  the  will  of  the  testator,  William  Hoge. 

2.  In  charging  the  jury,  that,  as  to  the  question,  what  was  the 


Sept.  1832.]  OF  PENNSYLVANIA.  181 

[Hoge  v.  Hoge.] 

will  of  the  testator  1  they  were  to  decide  it  from  the  writing  in  con- 
nexion with  the  verbal  declarations  of  the  testator,  and  of  the  de- 
viseee,  John  Hoge,  named  in  the  written  part. 

3.  In  charging  the  jury  that  the  circumstance  of  the  plaintiff  be- 
low, being  reputed  the  bastard  son  of  the  testator,  was  a  sufficient 
consideration  to  raise  and  support  a  trust  in  real  estate,  created  by 
words  merely  spoken  and  not  reduced  to  writing. 

4.  In  telling  the  jury  that  the  court  would  not  say  that  the  delay 
of  the  plaintiff  below  to  prosecute  his  claim,  which  at  most  could  not 
be  called  more  than  equitable,  was  a  bar  to  his  recovery,  when  it 
ought  to  have  said  so. 

5.  There  is  error  in  the  answer  of  the  court  below  to  the  sixth  point 
proposed  by  the  defendants  then  to  be  answered  for  the  instruction 
of  the  jury ;  it  is  vague  and  ambiguous,  especially  in  the  following 
words,  "  or  any  undue  advantage  taken  of  the  plaintiff's  ignorance, 
mistake  or  necessities,"  without  saying  whether  ignorance  or  mis- 
take of  the  facts  or  the  law  was  meant ;  and  therefore  calculated  to 
mislead  the  jury. 

6.  The  court  omitted  to  answer  the  ninth  point  of  the  defendants 
below. 

7.  The  court  erred  in  telling  the  jury,  that  if  they  should  find  for 
the  plaintiff  below  upon  the  other  points  beside  that  of  reconveying 
the  land  in  Mercer  county,  that  they  might,  notwithstanding  no 
reconveyance  had  been  made  or  tendered  by  the  plaintiff  below  to 
David  Hoge,  find  for  plaintiff;  but  make  provision  in  their  verdict  that 
the  plaintiff  should  not  obtain  possession  of  the  land  until  a  recon- 
veyance of  the  Mercer  land  should  be  made,  or  the  value  thereof 
tendered  or  paid  by  the  plaintiff  to  the  defendants. 

8.  The  court  erred  in  rendering  judgment  for  the  plaintiff  below, 
instead  of  for  the  defendants. 

W.  W.  Fetterman,  for  plaintiff  in  error. 

As  to  the  first  error  assigned  :  I  take  it  to  be  well  established  and 
fully  settled,  that  no  averments  can  be  allowed  or  parol  evidence  ad- 
mitted, to  alter,  vary,  contradict  or  explain  a  will  in  writing.  In 
Cheney's  case,  5  Coke  68,  Sir  Thomas  Cheney,  by  his  will  in  writing, 
devised  to  Henry  his  son  divers  manors,  and  to  the  heirs  of  his  body, 
the  remainder  to  Thomas  Cheney,  of  Woodby,  and  to  the  heirs  male 
of  his  body,  on  condition  "  that  he  or  they,  or  any  of  them  shall  not 
alien,  discontinue,"  &c.  It  was  offered  to  prove  by  witnesses  that 
it  was  the  intent  and  meaning  of  the  devisor  to  include  his  son  and 
heir  within  these  words  of  the  condition  "  he  or  they,"  and  not  only 
to  restrain  Thomas  Cheney,  of  Woodby,  and  his  heirs  male  of  his 
body  :  but  it  was  resolved  that  the  testimony  could  not  be  received, 
"  for  the  will  concerning  lands,  &c.  ought  to  be  in  writing,  and  the 
constructions  of  wills  ought  to  be  collected  from  the  words  of  the  will 
in  writing,  and  not  by  any  averment  out  of  it ;  for  it  would  be  full  of 


182  SUPREME  COURT  [Pittsburgh, 

[Hoge  v.  Hoge.] 

great  inconvenience,  that  none  should  know  by  the  written  words  of 
a  will,  what  construction  to  make  or  advice  to  give,  but  it  should  be 
controlled  by  the  collateral  averments  out  of  the  wills.  So  in  the 
case  of  Brett  v.  Rigden,  Plowd.  Rep.  345,  it  was  unanimously  agreed 
by  all  the  justices,  that,  where  the  testator  had  devised  his  lands  to 
B  and  his  heirs,  who  died  in  the  lifetime  of  the  testator,  who  after 
the  death  of  the  devisee  told  C,  the  son  and  heir  of  B,  in  the  pre- 
sence and  hearing  of  many  witnesses,  that  he,  the  said  C,  should  be 
heir  to  him  the  testator,  and  should  have  all  the  lands  which  B  his 
father  should  have  had  by  his  last  will  and  testament,  in  case  he  had 
survived  him,  (the  testator)  "  was  of  no  effect  in  law,  and  no  regard 
ought  to  be  given  to  it;  inasmuch  as  it  was  not  written  in  his  last 
will.  For  the  statutes  of  32  and  34  Hen.  8,  give  liberty  and  autho- 
rity to  every  one  to  devise  his  lands  by  his  last  will  and  testament 
in  writing."  In  which  case,  all  that  can  make  the  devise  effectual  ought 
to  be  in  writing.  "  And  if  the  rest  which  is  in  writing,  is  not  sufficient 
to  make  the  lands  pass  without  the  words  spoken  to  Thomas,  (that 
is  C)  the  son,  then  it  follows  that  the  substantial  matter,  which 
would  make  the  land  pass,  is  not  written,  but  rests  in  words  only, 
and  is  not  within  the  statute,  for  no  will  is  within  the  statute  but 
that  which  is  in  writing  ;  which  is  as  much  as  to  say  that  all  that  is 
effectual,  and  to  the  purpose,  must  be  in  writing,  without  seeking 
aid  of  words  not  written."  Godolph.  on  Leg.  52 ;  Gilb.  on  Devises 
90;  6  Cruise's  Dig.  1934;  Cases  39,  40,  41,  42  and  43. 

The  deposition  of  a  person  who  prepared  a  will  was  offered  to  be 
read,  to  prove  the  declarations  of  the  testator  at  the  time  he  gave  the 
instructions  for  his  will,  respecting  his  intention  of  giving  his  wife 
the  several  devises  and  bequests  mentioned  in  the  will,  over  and  above 
her  jointure,  but  Lord  Bathurst  would  not  suffer  such  evidence  to  be 
read.  1  Cruise's  Dig.  tit.  7,  c/i.  3,  sec.  1 2,  page  248  ;  Broughton  v. 
Erington,  7  Bro.  Par.  Ca.  12.  This  last  case  was  taken  to  the 
house  of  lords,  and  the  decision  of  the  chancellor  there  confirmed. 
See  also  the  case  of  Towers  v.  Jlfoon,  2  Vernon  98.  So  in  the  case 
of  Ulrick  v.  Litchfield,  2  Jltk.  372.  Mary  Parivicine  gave  her  real  and 
personal  estate  to  the  plaintiffs,  equally  between  them  ;  and  on  the 
death  of  one  of  them,  the  whole  estate  of  James  Ulrich,  in  tail ;  and 
for  want  of  such  issue  to  Richard  Ulrich  in  fee,  with  a  few  pecuniary 
legacies,  and  charged  her  real  estate  with  the  payment,  if  the  per- 
sonal estate  should  not  be  sufficient,  and  by  her  will  declared  she  gave 
all  the  rest  and  residue  of  her  personal  estate  to  her  uncle  Leonard  Col- 
lard's  three  daughters. 

The  counsel  for  the  residuary  legatee  offering  to  read  the  parol 
testimony  of  the  attorney  who  drew  the  will,  that  he  had  express 
directions  to  give  the  personal  estate  to  the  three  daughters  of  Leo- 
nard Collard :  Lord  Hardwicke  said,  "  I  am  of  opinion  it  is  not  a  case 
in  which  parol  evidence  can  be  read,  and  would  be  of  dangerous 
consequence  ;  it  is  true  there  are  some  things  here  which  would 
make  a  judge  wish  to  admit  it ;  but  I  must  not  follow  my  inclina- 


Sept.  1832.]  OF  PENNSYLVANIA.  183 

.  [Hoge  v.  Hoge.J 

tions  only,  for  I  do  not  know  that  upon  the  construction  of  a  will, 
courts  of  law  or  equity  admit  parol  evidence,  except  in  two  cases  : 
first,  to  ascertain  the  person  when  there  are  two  of  the  same  name, 
or  else  when  there  has  been  a  mistake  in  the  Christian  name  or  sir- 
name,  and  this  upon  an  absolute  necessity,  as  in  Lord  Cheney's  cases, 
where  there  were  two  sons  of  the  name  of  John,  5  Co.  68,  and  if  the 
court  had  not  let  in  such  evidence,  it  would  have  made  the  will  void, 
notwithstanding  there  was  such  a  person  as  John,  &c.  and  the  doubt 
was  only  which  of  them  was  meant ;  and  notwithstanding  too  the 
heir  at  law  was  already  disinherited.  The  second  is  with  regard  to 
resulting  trusts  relating  to  personal  estate.  When  a  man  makes  a 
will  and  appoints  an  executor  with  a  small  legacy,  and  the  next  of 
kin  claims  the  residue.  In  order  to  rebut  the  resulting  trust  for  the 
next  of  kin,  parol  evidence  was  admitted  to  ascertain  the  person  who 
was  to  have  the  residue,  in  the  case  of  Littleburg  v.  Buckly,  Eq.  Ca. 
Mr.  235,  and  the  Countess  v.  The  Earl  of  Gainsborough,  230. 

Likewise  in  the  case  of  Brown  v.  Selwyn,  Ca.  temp.  Talbot  240, 
John  Brown  devised  the  residue  of  his  real  and  personal  estate,  not 
before  devised,  to  his  two  executors,  &c.  One  of  them  is  indebted 
by  bond  to  the  testator.  Held,  by  Lord  Chancellor  Talbot,  that  this 
bond  debt  is  not  released  thereby,  but  shall  be  divided  between  them, 
and  no  parol  evidence  shall  be  admitted,  that  the  testator  intended 
to  release  it  to  the  obligor,  and  had  given  instructions  for  that  pur- 
pose to  the  attorney  who  drew  his  will.  This  decree  was  affirmed 
in  the  house  of  lords,  where  they  would  neither  allow  the  parol  evi- 
dence, nor  the  respondent's  answers  to  be  read  as  to  this  point.  See 
Ca.  temp.  Talbot  240,  243,  244;  Bro.  Par.  Ca.  179. 

Also,  in  the  case  of  Torbert  v.  Twining,  1  Yeates  432.  It  was  de- 
cided by  the  supreme  court  of  this  state,  that  parol  evidence  is  inad- 
missible to  supply,  contradict  or  explain  the  written  words  of  a  will. 
In  this  case  the  testator,  David  Twining,  had,  by  his  will,  dated  the 
25th  of  October  1791,  devised,  inter  alia,  considerable  real  estate  to  his 
daughter  Beulah  (wife  of  Torbert  and  one  of  the  plaintiffs).  And 
afterwards,  on  the  12th  of  November  1791,  by  codicil  thereto,  devised 
as  follows — "  Item :  Whereas  I  have  given  in  my  last  will  all  my 
lands  that  are  not  already  bequeathed  unto  my  daughter  Beulah  Tor- 
bert, for  and  during  her  natural  life,  with  all  the  rents,  issues  and 
profits ;  but  on  further  consideration  of  it,  I  do  give  all  the  lands  and 
tenements  and  appurtenances,  thereunto  belonging,  unto  my  loving 
brother,  Jacob  Twining  and  friend  Thomas  Story,  in  trust  for  the  use, 
benefit  and  behoof  of  my  daughter  Beulah  Torbert,  for  and  during  her 
natural  life,  they,  or  the  survivor  of  them,  to  rent  out,  in  the  best 
manner  they  can,  so  that  no  waste  is  made  of  the  timber,  and  the  best 
care  that  can  be  to  preserve  the  land/rom  abuse  by  extravagant  tillage. 
She,  my  said  daughter  Beulah,  to  have  all  the  rents,  issues  and  profits 
ensuing  from  the  aforesaid  plantation,  for  and  during  her  natural  life, 
and  at  her  decease  I  do  give  the  aforesaid  plantation  unto  the  male  heir 
or  male  heirs  of  her  body,  &c."  Depositions  were  agreed  to  be  made 


184  SUPREME  COURT  [Pittsburgh, 

[Hoge  v.  Hoge.] 

part  of  the  case,  which  went  to  show  that  the  testator  declared  in  his 
last  sickness,  that  his  intention  in  making  the  codicil  was,  that  the 
real  estate  therein  devised  to  his  daughter  Beulah,  should  be  for  her 
sole  and  separate  use :  and,  after  he  had  made  his  codicil,  he  declared 
that  he  expected  he  had  effected  his  purpose,  and  that  her  husband 
could  not  intermeddle  with  it.  Now  in  this  case  it  was  manifest 
from  the  written  will,  as  well  as  the  codicil,  that  his  daughter  was 
the  particular  and  special  object  of  the  testator's  bounty,  and  the 
moving  cause  of  the  devise,  yet  the  court  would  not  admit  the  parol 
evidence,  which  certainly  did  not  contradict  this  idea,  but  because  it 
would  have  excluded  her  husband  from  all  participation  in  the  en- 
joyment of  the  devise,  and  have  changed  the  legal  effect  of  a  devise 
to  her  use  generally,  the  court  felt  themselves  bound  to  reject  it.  To 
have  received  and  given  effect  to  such  testimony,  would  have  been 
to  have  made  it  part  of  the  testator's  will;  and  although  not  in  writ- 
ing, to  have  regulated  and  restricted  the  enjoyment  of  the  testator's 
real  estate  at  his  death.  This  would  have  been  in  direct  contraven- 
tion to  our  statute  on  the  subject  of  wills. 

The  first  section  of  the  act  of  1705,  Pur  don's  Dig.  800  (edit.  1824), 
provides  that  "  all  wills  in  writing,  wherein  or  whereby  any  lands, 
tenements  or  hereditaments  within  this  province,  have  been  or  shall  be 
devised,  being  proved,  &c.,  shall  be  good  and  available  in  law,  for  the 
granting,  conveying  and  assuring  of  the  lands  or  tenements  thereby 
given  or  devised,  as  well  as  of  goods  and  chattels  thereby  bequeathed." 
The  3d  section,  page  801,  declares  that  "  no  nuncupative  will  shall  be 
good,  where  the  estate  thereby  bequeathed  shall  exceed  the  value 
of  thirty  pounds,  that  is  not  proved  by  two  or  more  witnesses,  who  were 
present  at  the  making  thereof,  nor  unless  it  be  proved  that  the  testa- 
tor, at  the  time  of  pronouncing  the  same,  did  bid  the  persons  present, 
or  some  of  them,  bear  witness  that  such  was  his  will,  or  to  that  effect, 
&c."  And  by  the  fourth  section  it  is  further  provided,  that  no  testi- 
mony shall  be  received  to  prove  any  nuncupative  will,  if  more  than 
six  months  shall  have  elapsed  after  speaking  the  words,  unless  it,  or 
the  substance  of  it,  was  committed  to  writing  within  six  days  after 
the  making  of  the  said  will. 

Again,  bythe  sixth  section,  "no  will  in  writing,  concerning  any 
goods  or  chattels  or  personal  estate,  shall  be  repealed,  nor  any  clause, 
devise  or  bequest  therein  be  altered  or  changed  by  any  words,  or  will 
by  word  of  mouth  only,  &c." 

According  to  this  statute  a  will,  in  order  to  pass  real  estate,  cannot 
be  made  by  word  of  mouth,  under  any  circumstances.  Nor  can  it  as  to 
personal  estate  exceeding  in  value  thirty  pounds,  unless  done  in  the 
testator's  last  sickness,  and  after  his  death  proved  by  two  witnesses  at 
least,  who  were  required  at  the  time  to  take  notice  that  such  was  his 
will.  And  unless  it  be  reduced  to  writing,  within  six  days  after  the 
speaking  of  the  words,  no  proof  whatever  can  be  received  or  admit- 
ted of  it  more  than  six  months  thereafter.  Seeing  the  legislature 
have  been  so  particular  in  respect  to  the  admission  of  evidence,  to 


Sept.  1832.]  OF  PENNSYLVANIA.  185 

[Hoge  v.  Hoge.] 

establish  a  nuncupative  will,  can  it  be  imagined  that  they  could 
have  conceived  that  it  would  ever  be  attempted  in  the  case  of  real 
estate  ?  Even  in  the  case  of  a  will  of  personal  estate,  reduced  to 
writing,  they  have  expressly  forbidden  the  repeal  of  it,  or  the  altera- 
tion of  a.  single  clause  in  it,  without  committing  it  to  writing.  Yet, 
in  the  present  case,  the  declarations  of  the  testator  William  Hoge, 
made  to  Thomas  M'Gijfin,  who  drew  the  will,  have  been  received 
in  evidence  to  prove  what !  That  the  devise  to  John  Hoge  and  his 
heirs  and  assigns  was  not  intended  for  his  use  or  benefit,  although  so 
expressly  declared  on  the  face  of  the  will,  but' for  some  other  person 
or  persons.  The  admission  of  such  testimony  is  in  opposition  to 
every  principle  of  the  common  law  ;  to  the  express  provisions  of  the 
statute  ;  to  the  decision  of  the  courts  of  England,  and  of  our  own 
state  on  the  subject.  It  is  difficult  to  conceive  a  case,  where 
the  idea  of  a  trust  would  be  more  incompatible  with  the  devise  con- 
tained in  the  will  than  the  present.  It  must  be  observed,  that  the 
devise  to  John  Hoge  is  an  estate  in  fee  simple.  Now,  who  ever 
thought  of  devising  an  estate  to  a  man  and  his  heirs  and  assigns, 
who  was  designed  to  be  a  mere  trustee  1  I  must  say  that  at  this  mo- 
ment I  have  no  recollection  of  such  a  case.  How  incredible  !  Yet 
let  it  come  to  the  ears  of  jurors  whose  feelings  have  been  excited  and 
prepared  in  a  particular  way,  and  it  is  not  only  credible,  but  reasona- 
ble, just  and  righteous.  Under  some  such  sentiment  the  imagina- 
tions of  witnesses  are  set  to  work,  and  fancy  supplies  the  place  of 
recollection,  and  it  becomes  impossible  to  calculate  the  consequences. 
Hence  the  danger  in  admitting  such  testimony  at  all. 

In  the  case  of  Duncan  v.  Duncan,  2  Yeates  202,  where  a  rough 
draft  of  the  will  in  the  testator's  own  handwriting  was  offered  in  evi- 
dence to  show,  from  a  clause  or  expression  contained  in  it,  and  left 
out  of  the  will  that  was  executed,  that  a  devise  in  favor  of  the  widow 
was  intended  to  be  in  lieu  of  dower,  it  was  rejected  by  the  court,  who 
declared  that  "  the  will  must  be  judged  of  ex  visceribus  suis" 

Again,  in  the  case  of  Sword  v.  Mams,  3  Yeates  34,  Penelope  Haley 
had,  inter  alia,  devised  a  house  and  lot  in  Philadelphia  to  her  grand- 
daughter Mary  Thompson,  her  heirs  and  assigns.  The  granddaughter 
died  in  the  lifetime  of  the  testatrix;  who,  when  she  heard  of  the 
death  of  .Man/  her  granddaughter,  was  desirous  of  providing  for  the 
event  which  had  taken  place,  and  to  make  a  codicil  to  her  will  for 
the  purpose  of  giving  the  property,  which  had  been  devised  to  the 
granddaughter  Mary  Thompson,  her  heirs  and  assigns,  to  an  only 
child  and  son  named  James,  which  the  granddaughter  had  by  a  Mr 
Sproat  to  whom  she  had  been  married,  but  was  prevented  by  Dr 
Nathaniel  Dorsey,  who  was  married  to  another  granddaughter  of  the 
testatrix,  and  by  his  wife  entitled  to  one-ninth  part  of  the  estate  of 
which  the  testatrix  should  die  intestate.  He  informed  the  testa- 
trix (though  without  any  ill  design)  that  as  she  had  devised  to  her 
said  granddaughter  Mary  Thompson,  her  heirs  and  assigns,  that  her 
son  James  must  necessarily  inherit  the  same,  and  that  he  completely 

Y 


186  SUPREME  COURT  [Pittsburgh, 

[Hoge  v.  Hoge.] 

answered  the  description  of  her  heir.  With  these  assurances,  her 
mind  was  quieted,  and  she  prepared  for  death  without  making  any 
further  alteration  in  her  will.  In  addition  to  this  parol  testimony, 
the  nuncupative  will  of  the  testatrix,  which  had  been  proved  and 
established  by  two  witnesses,  showed  her  intention  beyond  all  ques- 
tion. It  was  also  deposed  to  by  other  witnesses,  that  they,  riot  long 
before  testatrix's  death,  heard  her  say  that,  in  case  of  her  grand- 
daughter Mary  Thompson's  death,  she  intended  the  property  for  her 
child,  and  that  it  was  secured  to  them.  The  court  decided,  though 
with  great  feelings  of  regret,  that  the  parol  evidence  could  not  be 
received.  They  say  "  the  case  is  perfectly  clear  at  law,  however 
hard  it  may  bear  on  the  infant  James  Sproat.  Private  inconve- 
nience must  give  way  to  the  safety  and  security  which  must  be  the  result 
of  general  principles  long  settled  and  sanctioned.  We  have  no  hesita- 
tion in  saying  that  the  plaintiff  is  entitled  to  a  verdict." 

In  the  case  of  Iddings  v.  Iddings,  7  Serg.  fy  Rawle  3  ;  it  was  de- 
cided, that  parol  evidence  is  not  admissible  to  show  that  a  scrivener, 
in  drawing  a  will,  inserted  words,  of  the  meaning  of  which  he  was 
ignorant,  in  order  to  vary  the  effect  of  the"  dispositions  contained  in  it, 
although  it  may  be  received  to  explain  a  latent  ambiguity,  or  to 
rebut  a  resulting  trust,  or,  in  case  of  fraud  or  mistake  to  annul  the  will. 
The  opinion  of  the  court  in  this,  case  is  delivered  by  the  late  chief 
justice,  who,  after  vindicating  the  propriety  and  justice  of  the  rule 
that  excludes  parol  evidence  in  such  cases,  with  great  force  and  per- 
spicuity notices  .the  only  exceptions  to  it,  and  the  reason  of  them. 
The  last  of  which  is  in  the  case  of  fraud  :  he  says  parol  evidence  is 
admitted  "  not  for  the  purpose  of  explaining  or  altering  the  writing, 
but  of  showing  it  to  be  void.  If,  instead  of  the  will  which  a  man 
has  read  and  intends  to  execute,  another  is  substituted  which  he 
executes,  it  is  evident  that  this  is  not  his  will,  and  proof  of  this  fraud 
is  permitted.  So,  I  apprehend,  the  truth  might  be  shown,  if,  by 
mistake,  the  wrong  paper  was  executed  and  the  testator  died  before 
there  was  time  to  correct  the  error."  Now,  the  plaintiff's  counsel 
below  does  not  pretend  that  he  is  entitled  to  the  benefit  of  the  parol 
testimony,  under  any  of  the  exceptions  to  the  general  rule  established 
on  this  subject  except  that  of  fraud  ;  but  if  it  were  to  be  admitted 
on  this  principle  it  could  not  entitle  the  plaintiff  below  to  recover  ; 
for  according  to  Chief  Justice  Tilghman  in  the  case  above,  the  effect 
of  it  would  not  be  to  change  or  alter  the  devise  in  the  will  to  suit  his 
wishes,  but  to  avoid  it,  which  must  necessarily  set  all  colour  of  claim 
on  his  part  aside. 

I  would  also  refer  to  the  case  of  Mann  v.  Mann,  on  this  subject,  in 
1  Johns.  Ch.  Rep.  231,  where  the  principles  and  cases  upon  and  in 
which  parol  evidence  has  been  admitted,  are  very  fully  and  learn- 
edly set  forth  by  Chancellor  Kent.  See  also  the  opinion  of  Chief 
Justice  Thompson,  in  Mann  v.  Mann,  14  Johns.  14,  and  also  11 
Johns.  205 ;  Jackson  v.  SUl,  8  Mass.  506,  and  Smith  v.  Fenner,  1 
Gallison  172.  I  contend  that  the  admission  of  the  parol  evidence  in 


Sept.  1832.]  OF  PENNSYLVANIA.  187 

[Hoge  v.  Hoge.] 

this  case  was  not  only  in  violation  of  the  true  spirit  and  meaning  of 
the  statute  of  this  state  against  frauds  and  perjuries,  but  more 
especially  in  direct  contravention  to  the  statute  regulating  wills  for 
devising  real  estate.  Although  I  admit  that,  by  many  decisions  of 
courts,  the  statute  of  frauds  and  perjuries  has  not  only  been  eluded, 
but  in  some  degree  repealed.  Yet,  in  no  instance,  has  the  statute 
requiring  wills  to  be  in  writing  and  proved  in  the  manner  therein 
prescribed,  for  the  purpose  of  passing  real  estate,  been  evaded  or  dis- 
regarded by  the  admission  of  parol  evidence.  No  case  can  be  found 
where  a  devise  of  real  estate  by  a  will  in  writing  has  been  established 
by  the  admission  and  effect  of  parol  evidence  ;  nor  yet  even  upon 
the  answers  of  the  defendant.  In  the  case  of  Selwyn  v.  Brown,  in 
Talbofs  Cases  (see  page  242  already  cited),  the  house  of  lords  re- 
fused to  admit  the  respondent's  answer.  So  it  was  held  in  Lee  v. 
Henley,  1  Vern.  37,  that  no  averment  of  a  trust  of  real  estate  given 
by  will  can  be  received.  See  also  the  note  of  the  late  editor 
(Raithby)  of  these  reports,  vol.  1,  page  30,  note  (1).  It  would 
seem  from  Fane  v.  Fane,  1  Fern.  30,  that  a  trust  of  personal  estate 
given  by  will  may  be  averred.  So  of  moneys  arising  from  the  sales 
of  lands  directed  by  the  will  to  be  sold ;  as  appears  from  Crumpton  v. 
North,  cited  in  lady  Gainsborough's  case,  2  Fern.  253.  The  lord 
chancellor,  Cowper,  however,  considered  lady  Gainsborough's  case, 
and  Foster  v.  Munt  there  cited,  as  being  an  innovation  of  the  com- 
mon law,  in  Granville  v.  Beaufort,  2  Vern.  649.  All  the  cases  cited  by 
the  counsel  for  the  plaintiff  below,  to  show  that  trusts  have  been 
established  in  the  cases  of  wills  by  the  introduction  of  parol  evidence, 
relate  to  personal  estate,  or  to  ah  engagement  to  pay  or  allow  money 
which  is  purely  of  personal  character.  Thynn  v.  Thynn,  1  Vern. 
296,  S.  C.  1  Eq.  Ca.  Abr.  380,  pi.  6;  Reech  v.  Kennegal,  1  Ves. 
Sen.  123,  S.  C.  Amb.  67 ;  Drakeford  v.  Wilks,  3  Atk.  539 ;  Kings- 
man  v.  Kingsman,  2  Vern.  559  ;  Devenish  v.  Baines,  Prec.  in  Chan.  3. 
This  last  case  was  a  nomination  by  parol  of  a  successor  to  copyhold  ; 
but  it  is  there  said  that,  according  to  the  custom  of  the  manor,  an  estate 
might  be  created  therein  by  parol,  without  writing,  and  of  course  so 
might  a  trust,  and  therefore  not  with  the  statute  of  frauds  and  per- 
juries ;  and  the  court  decreed  a  trust  upon  the  promise  and  verbal 
engagement  of  the  defendant  in  favour  of  the  plaintiff.  So  in  Rook- 
wood's  case,  Cro.  Eliz.  164.  Rookwood  having  issue  three  sons,  had 
an  intent  to  charge  his  land  with  four  pounds  per  annum  to  each  of 
his  two  youngest  sons  for  their  lives  ;  but  the  eldest  son  desired  him 
not  to  charge  the  land,  and  promised  to  pay  to  them  duly  the  four 
pounds  per  annum ;  to  which  the  younger  son,  being  present,  con- 
sented ;  and  he  promised  them  to  pay  it.  For  non-payment,  after 
the  death  of  the  father,  they  brought  an  assumpsit.  The  whole 
court  held  clearly  that  it  was  well  brought.  Which  proves  that 
such  engagements  to  pay  money,  or  any  thing  that  is  personal,  have 
no  relation  to  the  statute  of  frauds  and  perjuries.  In  Heisier  v. 
Clarke,  2  Eq.  Ca.  Mr.  46,  47,  held  that  an  agreement  with  respect 


188  SUPREME  COURT  [Pittsburgh, 

[Hoge  T.  Hoge.] 

to  copyhold  lands  need  not  be  reduced  to  writing  because  not  em- 
braced by  the  statute.  So  a  promise  by  an  executor  to  his  testator 
to  pay  all  the  legacies  in  the  will,  provided  he  would  not  alter,  is 
binding,  2  Freeman  34  ;  also,  several  others  are  mentioned  in  1 
Raithby's  edition  of  Vernon,  page  31,  note  (2),  all  of  the  same  cast, 
but  I  repeat  that  no  case  can  be  found  of  real  estate  passing  under 
such  arrangement  and  of  parol  testimony  being  admitted  to  estab- 
lish it.  Indeed  there  are  decisions  to  the  contrary  even  in  the  case 
of  personal  estate.  In  the  case  of  Whitton  v.  Russel,  I  Jltk.  448, 
the  testator  left  A  20  pounds  per  annum  by  codicil  to  his  will,  and 
after  talking  of  making  another  codicil  and  leaving  him  15  pounds 
per  annum  more,  the  attorney  told  him  that  if  B,  C  and  D,  whom 
he  had  made  devisees  of  his  estate,  would  give  A  a  bond  to  pay 
him  15  pounds  per  annum,  it  would  be  sufficient.  Accordingly  B, 
one  of  the  devisees  present,  promised  that  lie  and  the  devisees  would,  and  a 
draft  was  prepared  but  not  executed.  The  testator  lived  five  weeks 
after  this  transaction,  and  A  remained  nine  years 'without  demand- 
ing the  performance  of  the  promise,  or  insisting  to  have  the  draft 
perfected,  and  then  brought  his  bill.  The  defendant  denied  his  pro- 
mise and  the  plaintiff's  bill  was  dismissed  at  the  rolls,  who  there- 
upon appealed.  A  number  of  the  cases  above  were  cited  to  sustain 
the  bill.  The  defendant,  by  his  answer  here,  insisted  on  the  statute 
of  29  Car.  2,  for  prevention  of  frauds  and  perjuries.  The  lord 
chancellor  said  :  "  These  cases  upon  the  statute  of  frauds  are  to  be  pro- 
ceeded upon  with  great  caution.  The  present  plaintiff  does  not  appear 
to  be  any  relation  of  the  testator,  and  I  think  there  is  no  ground  on 
the  parol  evidence  to  decree  for  the  plaintiff  in  the  present  case, 
though  the  cases  cited  go  a  great  way.  The  present  attempt  is,  in 
effect,  to  add  a  legacy  to  a  will  and  codicil  in  writing  by  parol 
poof,  which,  if  relating  to  personal  estate  only,  ought  not  to  be  al- 
lowed ;  but  this  goes  further  arid  seeks  to  charge  lands  with  an 
annuity  of  15  pounds  per  annum,  without  writing,  which  is  expressly 
against  the  statute  of  frauds ;  and,  in  the  next  place,  to  have  a  spe- 
cific performance  of  an  agreement  not  in  writing,  which  the  court 
will  not  do." 

The  chancellor  further  adds  in  this  case :  '*  neither  is  there  any 
ground  for  relief  on  the  head  of  accident  or  fraud :  at  the  time  of 
making  the  will,  the  testator  talks  with  only  one  of  the  devisees  of 
giving  15  pounds  per  annum  more  to  the  plaintiff,  &c.  ;  every  breach 
of  promise  is  not  to  be  called  a.  fraud,  nor  does  it  appear  that  the  tes- 
tator was  drawn  in  by  this  promise,  not  to  add  the  legacy  to  this 
codicil."  "  Again,"  he  adds,  page  449,  "  demands  of  this  kind  should 
be  pursued  very  recently,  for  the  danger  of  perjury,  intended  to  be 
prevented  by  the  statute,  increases  much  more  after  length  of  time, 
and  therefore  are  strong  objections."  The  lord  chancellor  consi- 
dered the  bill,  in  this  last  case,  as  in  effect  asking  him  to  add  a  legacy 
of  15  pounds  per  annum  to  a  will  and  codicil  in  writing  upon  parol 
proof.  Was  not  this  literally  and  substantially  to  alter  and  change  a 


Sept.  1832.]  OF  PENNSYLVANIA.  189 

[Hoge  v.  Hoge.] 

part  or  clause  in  the  written  will  or  codicil  1  If  so,  it  is  expressly 
forbidden  by  the  sixth  section  of  our  statute  of  wills,  already  in  part 
recited,  although  not  expressly  so  by  the  English  statute  of  29  Car. 
2.  So  that  our  statute  of  1706,  on  the  subject  of  wills,  is  more  re- 
strictive, than  the  English.  If  then,  by  the  English  act,  the  intro- 
duction of  parol  proof,  in  the  opinion  of  such  a  man  as  Lord  Hard- 
wicke,  be  forbidden,  what  doubt  can  there  be  but  that  it  is  against 
both  the  spirit  and  letter  of  ours  1  No  decision  has  ever  been  pro- 
nounced by  our  supreme  court  admitting  parol  testimony,  for  the 
purpose  of  altering  or  changing  the  effect  of  either  a  bequest  of  per- 
sonal estate,  or  devise  of  real,  contained  in  a  written  will,  arid 
making  it  different  from  the  import  of  the  words  used  therein,  and  I 
trust  never  will.  We  have  a  statute  on  the  subject  of  wills,  as  also 
one  against  frauds  and  perjuries,  of  our  own.  Both  somewhat  dif- 
ferent from  the  English.  Our  statute,  especially  in  relation  to  wills, 
is  materially  variant,  and  more  rigid  against  any  alteration  or  change 
of  a  will  in  writing  by  parol  proof.  There  is  nothing  in  the  British 
statute  of  frauds  and  perjuries,  prohibiting  the  alteration  of  a  written 
will  of  personal  estate  by  making  a  nuncupative  one,  which  is  ex- 
pressly forbidden  by  our  statute  of  wills,  and  according  to  it,  the 
change  or  alteration  can  only  be  made  by  a  will  in  writing.  There 
is  no  reason,  therefore,  why  we  should  pay  any  regard  to  the  En- 
glish decisions,  admitting  parol  proof,  to  create'  trusts  of  personal 
estate  bequeathed  by  a  will  in  writing.  We  have,  it  is  true,  fol- 
lowed the  English  decisions  pretty  closely,  in  the  construction  of  our 
statute  against  frauds  and  perjuries.  And  it  is  now  admitted,  by 
every  intelligent  and  dispassionate  mind,  that  this  statute  has  been 
evaded,  and  its  true  meaning,  according  to  the  ordinary  and  com- 
mon acceptation  of  its  language,  in  a  great  degree,  disregarded.  In 
truth,  the  real  design  and  object  of  it  has  been  defeated  by  a  con- 
struction founded  on  a  course  of  artificial  reasoning,  of  which  its 
framers  never  dreamed.  Hence  a  disposition  on  the  part  of  some  of 
the  best  and  soundest  of  our  modern  judges  to  narrow  the  door  for 
the  admission  of  parol  evidence.  In  the  case  of  Iddings  v.  Iddings, 
already  quoted,  in  7  Serg.  <$•  Rawle,  page  115,  the  late  Chief  Justice 
Tilghman  says,  "  for  my  own  part,  being  convinced  by  experience 
of  the  danger  of  parol  evidence,  I  am  more  inclined  to  shut  the  door, 
than  to  throw  it  wider  open."  Again,  in  Bombay  v.  Boyer,  14  Serg. 
fy  Rawle  256,  he  says,  "  I  will  add,  that  this  liberty  which  courts  of 
chancery  have  taken  with  statutes,  in  contradicting  and  almost  anni- 
hilating their  provisions,  has  introduced  great  uncertainty,  and  would 
not  be  carried  so  far,  since  our  experience  of  its  inconvenience,  if  our 
steps  could  be  retraced,  without  shaking  the  foundations  of  property." 
Justice  Duncan,  in  Withers' }s  case,  14  Serg.  fy  Rawle,  says,  "  a  de- 
parture from  the  wholesome  provisions  of  the  clear  and  positive  en- 
actments of  that  act,  (meaning  against  frauds  and  perjuries)  of 
which  it  has  been  said  by  English  jurists,  that  every  line  of  it  de- 
served a  subsidy,  has  been  regretted  ;  and  judges,  instead  of  extend- 


190  SUPREME  COURT  [Pittsburgh, 

[Hoge  v.  Hoge.] 

ing  the  exceptions,  are  drawing  in  and  conforming  to  the  statute." 
That  the  tiue  meaning  and  design  of  the  act  against  frauds  and 
perjuries  has  been  perverted,  no  one  can  well  doubt.  As  a  pretence 
for  the  introduction  of  parol  evidence,  it  is  said  that  has  been  done 
to  prevent  fraud,  and  that  this  was  the  grand  object  of  the  act.  It 
is  no  doubt  true,  that  the  great  design  of  the  act  was  to  prevent 
fraud ;  but  how  1  Surely  not  by  the  introduction  of  parol  proof. 
The  fraud  which  was  dreaded  and  intended  to  be  guarded  against  by 
the  very  words  of  the  act,  is  that  which  arises  from  receiving  parol 
evidence,  which,  being  given  under  the  appearance  of  candour  and 
disinterestedness,  imposes  conviction  on  the  minds  of  the  judges  and 
juries  of  its  truth,  but  in  reality  is  false.  Hence,  in  some  of  the  most 
important  concerns  of  life,  it  was  deemed  expedient  to  require,  that, 
whatever  shall  be  done  in  relation  to  these,  should  be  reduced  to 
writing,  and  that  parol  evidence  should  not  be  admitted,  lest,  through 
its  falsity,  fraud  and  injustice  should  be  done.  In  short,  fraud  com- 
mitted by  means  of  perjury  was  the  only  fraud  which  the  act  was  in- 
tended to  prevent ;  which  every  one  must  admit  cannot  be  effectually 
done,  but  by  obeying  the  injunction  of  the  act,  and  excluding  parol 
evidence  altogether  in  such  cases.  Now,  it  appears  obvious,  that 
the  same  motives  which  induced  the  passage  of  the  act  against  frauds 
and  perjuries,  with  some  qualifications  and  exceptions,  caused  the 
enactment  on  the  subject  of  wills  in  Pennsylvania,  requiring  them 
toHae  reduced  to  writing,  in  order  to  pass  lands,  &c.  without  any 
exception  whatever.  As  yet  no  exception  has  been  interpolated  by 
any  exotic  construction.  Will  the  court,  then,  after  the  regret  that 
has  been  felt,  and  so  strongly  expressed  for  the  fate  of  the  act  against 
frauds  and  perjuries,  consign  the  act  on  wills  to  a  similar  one  ? 
Judges  are  to  expound,  not  to  make  the  law.  We,  therefore,  say, 
that  the  court  below  erred  in  permitting  parol  evidence  of  what  the 
testator,  William  Hoge,  said  at  the  time  of  drawing  his  will,  to  the 
scrivener,  to  be  given  in  evidence.  Richards  v.  Dutch,  8  Mass.  506  ; 
Mann  v.  Mann,  14  Johns.  14. 

We  also  contend,  for  the  same  reasons,  that  the  conversations  and 
declarations  of  John  Hoge,  the  devisee  in  the  will,  ought  not  to  have 
been  received.  For  what  purpose  were  they  offered  ?  Was  it  not  to 
give  an  effect  to  the  devise  made  in  favour  of  John  Hoge,  altogether 
different  from  that  expressed  in  the  body  of  the  will  itself?  To  make 
William  Hoge,  the  plaintiff  below,  the  devisee,  instead  of  John  Hoge, 
who  is  the  person  not  only  named  therein  as  the  devisee,  and  the 
object  of  the  testator's  bounty,  but  so  intended  to  be  by  the  testator, 
not  only  as  it  is  written  in  the  will,  but  according  to  the  parol  evi- 
dence of  Mr  M'Gijfrn  who  drew  the  will.  For  he  swears  that, 
although  the  testator  told  him  at  the  time  that  it  was  in  trust,  yet  he 
named  no  cestui  que  trust,  and  declared  that  he  could  not  possibly 
do  it  in  any  other  way ;  and  that  he  had  full  confidence  in  the  devisee 
so  named.  John  Hoge  then,  to  whom  the  land  in  dispute  is  given  by 
the  will,  was  the  only  person  in  being  at  the  time  to  whom  the  testa- 


Sept.  1832.]  OF  PENNSYLVANIA.  191 

[Hoge  v.  Hoge.] 

tor  could  think  of  giving  it.  The  plaintiff  was  then  four  or  five  and 
twenty  years  of  age,  and  had  the  testator  ever  thought  of  giving  the 
land  to  him,  or  any  interest  in  it,  there  was  no  plausible  reason 
whatever  why  he  should  not  have  named  him  in  his  will,  as  the  ob- 
ject of  his  regard  and  bounty.  He  was  in  being  and  old  enough  at 
the  time  to  have  disclosed  fully  what  he  was,  or  what  he  was  like  to 
be.  Yet  he  is  not  named.  Nay,  there  is  even  great  reason  to  believe 
that  he  was  not  even  thought  of  by  the  testator.  For  he  was  never 
heard  to  speak  of  him  as  having  any  regard  or  concern  for  him, 
much  less  to  do  any  thing  for  him  as  a  child,  except  upon  one  occa- 
sion that  he  furnished  him  with  a  horse,  saddle  and  bridle,  to  get  rid 
of  the,  no  doubt  unpleasant,  importunity  of  John  Hoge,  the  devisee, 
who  had  procured  a  military  commission  for  the  plaintiff,  which  made 
the  above  articles  necessary  for  his  equipment.  It  must  appear  un- 
accountably strange  if  the  testator  could  have  wished  or  designed 
the  devise  of  the  land  in  dispute  for  the  benefit  of  the  plaintiff;  and 
yet  the  plaintiff  not  have  it  in  his  power  to  adduce  a  single  witness 
who,  at  any  time,  had  ever  heard  the  testator  express  the  slightest 
degree  of  regard  for  him,  or  say  that  he  intended  to  do  any  thing  for 
him.  No  such  testimony  was  given,  nor  have  I  ever  heard  it  sug- 
gested that  any  such  existed.  John  Hoge,  the  devisee  in  the  will, 
appeared  to  have  done  the  part  of  a  parent  by  the  plaintiff,  in  school- 
ing, educating,  clothing  and  fitting  him  in  every  respect  to  make  a 
livelihood  for  himself  in  the  world.  From  the  force  of  habit,  if  nothing 
else,  it  may  be  well  conceived  that  the  devisee  had  acquired  a  feeling 
of  good  will  towards  the  plaintiff,  and  a  desire  to  advance  his  interest 
in  the  world.  Hence  arose,  no  doubt,  the  impressions  made  on  the 
minds  of  .the  witnesses,  to  which  they  have  testified,  from  loose  and 
casual  conversations  with  John  Hoge  the  devisee.  But,  if  the  parol 
declarations  of  the  testator  be  insufficient  in  law  to  make  a  will  for 
devising  lands,  how  is  it  possible  that  when  he  has  made  a  written 
will  giving  his  land  to  a  person  therein  named,  which  is  sufficient  to 
pass  the  land  to  the  devisee  so  named,  and  that  the  parol  declarations 
of  the  testator  cannot  give  or  create  a  trust  in  it  for  the  benefit  of  any 
other,  that  the  parol  declarations  of  the  devisee  can  do  more  towards 
such  an  object  than  those  of  the  testator  himself?  Why  is  it  that 
the  parol  declarations  of  the  testator  cannot  be  received  for  this  pur- 
pose] Because  it  was  considered  unsafe,  lest,  through  misapprehen- 
sion, perjury  or  any  other  cause,  the  wish  and  the  will  of  the  testa- 
tor might  be  misrepresented  and  thwarted,  in  regard  to  the  disposi- 
tion of  his  estate :  therefore  it  was  deemed  proper  to  require  it  to  be 
put  in  writing,  by  doing  of  which  the  danger  of  mistake  would  at 
least  be  diminished.  But  all  these  reasons  prove  an  equal  necessity 
for  having  reduced  to  writing  any  thing  that  may  be  declared,  and 
is  intended  by  the  devisee  to  have  an  effect. 

It  may  perhaps  be  contended,  that  as  John  Hoge  appears,  from  the 
face  of  the  will  after  it  took  effect  by  the  death  of  the  testator,  to  be 
the  owner  in  fee,  he  had  a  right  to  declare  the  character  in  which 


192  SUPREME  COURT  [Pittsburgh, 

[Hoge  v.  Hoge.] 

he  held  the  estate  either  as  trustee  or  otherwise.  That  the  statute 
of  wills  does  not  apply  to  him,  but  that  he,  upon  the  principle  of  his 
being  owner  of  the  land,  may  dispose  of  it  by  parol,  by  declaring  that 
he  held  it  in  trust  for  the  plaintiff'.  This,  I  apprehend,  would  not  be 
sufficient  to  constitute  the  plaintiff  a  cestui  que  trust,  nor  yet  be  suf- 
ficient evidence  of  his  being  so.  By  the  will  I  have  already  shown 
that  John  Hoge  is  not  made  a  trustee,  and  if  not  made  so  by  the  will, 
there  is  nothing  else  appearing  in  the  case  by  which  the  testator 
could  have  made  or  created  him  a  trustee.  The  simple  question 
then  is,  can  a  man,  without  any  consideration,  by  parol  declare  him- 
self a  trustee  of  his  land  for  the  benefit  of  another  ?  If  he  can,  it 
would  in  effect  be  doing  more  than  he  could  do  by  a  deed  of  bargain 
and  sale,  duly  executed  under  his  hand  and  seal,  without  any  con- 
sideration actually  moving  between  him  and  the  vendee,  and  with- 
out any  being  inserted  in  the  deed  ;  because  in  such  case  the  vendee 
would  be  a  trustee  for  the  vendor  who  would  be  cestui  que  trust.  I 
also  consider  it  clear,  from  a  fair  interpretation  of  our  act  against 
frauds  and  perjuries,  that  a  trust  in  lands  cannot  be  created  by  parol, 
nor  established  by  parol  evidence,  except  in  the  case  of  a  resulting 
trust,  which  arises  rather  from  the  operation  of  law  upon  the  act  of 
the  party.  As  when  A  is  furnished  with  money  by  B  to  buy  land 
for  B,  and  A  purchases  the  land  but  takes  the  conveyance  of  it  to 
himself,  a  trust  will  arise  or  result  therefrom  to  the  use  of  B  who 
furnished  the  money.  The  consideration  of  the  purchase  in  fact 
moved  from  him,  and  the  benefit  of  it  shall  therefore  return  to  him. 
But  to  make  it  a  resulting  trust,  and  take  it  out  of  the  statute  of 
frauds,  it  is  evidently  necessary  that  B  should  have  advanced  the 
purchase  money,  or  at  least  some  part  of  it,  to  A,  at  the  time  of  the 
purchase.  For  although  A  agreed  to  buy  the  land  for  B  who 
agreed  to  advance  the  money,  yet  if  A  buy  and  pay  for  it  with  his 
own  money,  he  will  be  entitled  to  hold  the  land,  and  may  grant  it 
to  B  or  not  at  his  pleasure.  See  Boyd  v.  Maclean,  1  Johns.  Cha. 
Rep.  582 ;  Botsford  v.  Burr,  2  Johns.  Cha. Rep.  409,  where  Chancellor 
Kent  says,  "  the  whole  foundation  of  the  trust  is  the  payment 
of  the  money,  and  that  must  be  clearly  proved  (which  may  be  by  pa- 
rol). If  therefore  the  parly  who  sets  up  a  resulting  trust  made  no 
payment,  he  cannot  be  permitted  to  show,  by  parol  proof ,  that  the  pur- 
chase was  made  for  his  benefit,  or  on  his  account.  This  would  be 
to  overturn  the  statute  of  frauds  ;  and  so  it  was  ruled  by  Lord  Keeper 
Henley  in  the  case  of  Bartlett  v.  Pickersgill,  4  East  577,  note ;  Hughs  v. 
Moore,  7  Cranch  176."  See  also  Steere  v.  Steere,  5  Johns.  Cha.  Rep. 
I  ;  Justice  Duncan  to  the  same  effect  in  Peebles  v.  Reading,  8  Serg. 
<$•  Rawle  192 ;  Gregory's  Lessee  v.  Setter,  1  Doll.  193 ;  German  v.  Gao- 
bold,  3  Binn.  304,  and  Wallace  v.  Dujjield,  2  Serg.  $  Rawle  421,  are 
all  cases  of  resulting  trusts,  because  the  purchases  were  considered 
and  decided  to  have  been  made  with  the  moneys  of  the  plaintiffs,  and 
therefore  resulting  trusts.  They  are  no  otherwise  to  be  considered  as 
trusts  growing  out  of  fraud,  otherwise  than  it  was  fraudulent  in  the 


Sept.  1832.]  OF  PENNSYLVANIA.  193 

[Hoge  v.  Hoge-] 

defendants  to  withhold  from  the  plaintiffs)  the  lands  which  they  had 
bought  with  their  moneys  ;  and  without  the  plaintiff's  money  has 
been  used  by  the  defendant  in  the  purchase  there  can  be  no  result- 
ing trust,  however  unfaithful  he  may  have  been  to  the  plaintiff. 
Our  statute  of  frauds  contains  terms,  in  its  first  section,  broad  and 
comprehensive  enough  to  embrace  equitable  as  well  as  legal  estates, 
and  I  do  not  see  how  it  should  have  been  thought  otherwise,  if  it 
were  not  for  the  circumstance  of  being  copied  in  part  only  from  the 
English  statute  ;  omitting  the  seventh  section  among  others  which 
mentions  trust  estates  by  name.  At  the  passage  of  our  statute,  how- 
ever, as  well  as  since,  legal  estates  and  equitable  or  trust  estates 
were  considered  as  being  placed  on  the  same  footing  in  every  respect  : 
they  were  liable  to  dower,  to  the  lien  of  judgments,  and  to  be  taken 
in  execution  and  sold  for  the  payment  of  debts ;  which  last  is  speci- 
ally provided  for  in  the  English  statute,  though  not  in  ours.  Nor  was 
it  deemed  necessary,  for  the  reason  that  we  had  been  accustomed  to 
treat  them  as  if  they  had  been  of  legal  character.  It  is  true  that  the 
late  Chief  Justice  Tilghman  (in  German  v.  Gobbald,  3  Sinn.  304), 
in  speaking  of  the  first  section  of  our  law  against  frauds,  and  the 
particular  words  of  it  "  by  act  or  operation  of  law"  says,  "  this  provi- 
sion seems  to  apply  rather  to  legal  estates  than  to  trusts,  &c."  And 
so  Justice  Duncan,  in  Peebles  v.  Reading,  8  Serg.  fy  Rawle  492,  uses 
the  following  language : 

"  Though  the  act  of  the  21st  of  March  1772,  for  the  prevention  of 
frauds  and  perjuries,  is  copied  from  the  statute  of  29  Car.  2,  yet  it  does 
not  incorporate  all  the  provisions  of  that  statute.  It,  among  others, 
omits  the  seventh  section  respecting  trusts.  This  omission  cannot  be 
imputed  to  accident;  and  from  the  cases  of  German  v.  Gobbald,  3  Binn. 
304;  and  Wallace  v.  Duffield  and  wife,  2  Serg.  fy  Rawle  521,  it  would 
seem  that  the  act  did  not  prevent  any  declaration  of  trust  being  made 
by  parol,  &c.,  repeating  the  preceding  declaration  of  the  late  chief 
justice.  Yet  Justice  Duncan,  after  considering  this  matter  more  de- 
liberately and  maturely,  declares,  in  Withers' s  case,  14  Serg.  fy  Rawle 
193  :  "  although  the  seventh  section  of  the  statute  of  frauds,  which 
enacts  that  all  declarations  or  confessions  of  trust  or  confidence  of  any 
lands,  &c.,  shall  be  manifested  and  proved  by  some  writing,  is  not 
incorporated  into  our  law,  yet,  in  substance,  it  is  comprehended  in 
the  first  section  of  the  act — '  No  interest  in  land,  either  in  law  or 
equity,  shall  pass  by  parol  only,  any  consideration  for  making  the 
agreement  to  the  contrary  notwithstanding,  except  for  a  term  not 
exceeding  three  years;  nor  except  by  deed  or  note  in  writing  signed 
by  the  party;  or  by  the  act  and  operation  of  law9 — Trusts,  arising  by 
act  and  operation  of  law,  are  when  trust  money  has  been  laid  out  in 
lands,  or  when  one  man  pays  the  money,  and  the  conveyance  is  to 
another.  These,  and  cases  fully  within  the  same  reason,  are  the 
only  cases  of  resulting  trusts  by  act  and  operation  of  law,  which  are 
within  the  exception  of  the  act  of  assembly.  Wallace  v.  Duffield, 


194  SUPREME  COURT  [Pittsburgh, 

[Iloge  v.  Hoge.] 

2  Serg-  fy  Rawle  521.  To  raise  a  trust  by  act  and  operation  of 
law,  an  actual  payment  by  cestui  que  trust  must  be  shown  to  have 
been  made  at  the  time  of  the  purchase.  Steen  v.  Steen,  5  Johns.  Ch. 
Rep.  1.  Cases  of  fraud  are  always  exceptions  between  the  parties 
to  the  fraud."  Thus  we  see  that  this  learned  and  distinguished 
jurist  changed  his  mind  entirely  as  to  the  true  construction  of  this 
act.  If  this  last  opinion  be  the  true  construction  of  the  act,  of  which 
I  think  there  can  be  little  doubt,  the  parol  evidence  which  was  given 
of  the  verbal  declarations  of  John  Hoge,  was  in  direct  opposition  to 
the  statute.  Besides,  I  take  it  to  be  in  direct  contradiction  to  the 
case  of  Church  v.  Church,  4  Yeates  280,  where  it  was  decided  by  the 
court  unanimously,  that  the  declarations  of  the  grantee,  made  after 
the  execution  of  the  deed  of  conveyance,  that  she  had  paid  nothing 
for  it,  but  held  it  in  trust  for  the  family,  were  not  admissible  in  evi- 
dence. That  to  receive  them  would  militate  distinctly  against  the 
act  of  frauds  and  perjuries,  and  that  there  has  always  been  a  clear 
and  obvious  distinction  made  between  trusts  of  real  and  personal  pro- 
perty, the  latter  not  being  considered  within  the  English  statute 
against  frauds  and  perjuries.  See  10  Mod.  404 ;  1  Keble  490. 

It  is  alleged  by  the  plaintiff's  counsel,  that  it  was  right  to  admit 
this  testimony  in  order  to  prevent  fraud,  and  therefore  it  is  not  within 
the  prohibition  of  the  statute  of  frauds.  Lord  Hardwicke,  in  Lloyd 
v.  Spillet,  2  Jltk.  150,  in  speaking  of  resulting  trusts  by  operation  of 
law,  and  specifying  two  instances,  says  he  knows  of  no  other,  "  un- 
less in  cases  of  fraud,  and  when  transactions  have  been  carried  on 
mala  fide."  This  expression  is  also  noticed  by  the  late  Chief  Justice 
Tilghman  in  German  v.  Gobbald,  3  Binn.  305.  But  the  kind  of 
fraud,  or  the  means  by  which  it  shall  be  effected  to  produce  this  ope- 
ration of  law,  and  take  cases  out  of  the  statute  against  frauds,  are 
not  explained  by  either.  I  take  for  granted,  however,  that  Lord 
Hardwicke  does  not  mean  such  a  fraud  as  is  attached  to  a  mere  breach 
of  contract.  For,  if  he  did,  then  every  parol  contract  for  the  sale  of 
land,  where  the  vendor  afterwards,  without  excuse,  refuses  to  con- 
vey, would  be  such  a  fraud  as  to  create,  by  operation  of  law,  a  trust 
in  favour  of  the  vendee,  which  would  be  directly  in  the  teeth  of  the 
statute.  There  are,  however,  a  class  of  cases  where  frauds  are  prac- 
tised by  means  of  false  pretences,  such  as  men  of  even  extraordinary 
sagacity  cannot  always  guard  against,  which  might  be  sufficient  to 
raise  a  trust.  But,  according  to  Lord  Hardwicke,  a  breach  of  contract 
does  not  necessarily  produce  fraud,  in  such  sense  of  the  word.  In 
Whitton  v.  Russell,  1  Jit k.  449,  he  says,  "  every  breach  of  promise  is 
not  to  be  called  a  fraud,"  and  this  was  said  too  in  application  to  the 
case  before  him,  when  the  testator  had  left  A  20  pounds  per  annum, 
by  a  codicil  to  his  will,  and  after  talking  of  making  another  codicil  and 
leaving  him  15  pounds  per  annum  more,  the  attorney  told  him  that  if 
B,  C  and  D,  whom  he  had  made  devisees  of  his  estate,  would  give  A  a 
bond  to  pay  him  15  pounds  per  annum  it  would  be  sufficient;  accord- 
ingly B,  one  of  the  devisees  present,  promised  that  he  and  the  devisees 


Sept.  1832.]  OF  PENNSYLVANIA.  195 

[Hoge  v.  Hoge.] 

would — a  draft  was  drawn,  but  not  executed,  and  after  the  death  of 
the  testator  was  refused  to  be  executed.  The  complainant  prayed  a 
specific  performance,  and  to  have  the  15  pounds  per  annum  charged 
upon  the  real  estate.  The  lord  chancellor  considered  it  an  attempt  in 
effect  to  add  a  legacy  to  a  will  and  a  codicil  in  writing  by  parol  proof, 
and  dismissed  the  bill.  How  infinitely  more  strong  was  the  claim 
of  the  plaintiff  to  relief,  by  the  interposition  of  the  court,  in  this  case, 
than  the  one  now  presented  to  the  court.  Whitton  was  actually 
named  in  the  will,  and  a  legacy  of  20  pounds  per  annum  given  to  him. 
Whereas  the  plaintiff,  in  the  case  before  the  court,  was  never  even 
spoken  of  by  the  testator  as  the  object  of  his  care  or  bounty. 

Again,  in  the  case  of  Whitton  v.  Russell,  one  of  the  devisees  of 
the  principal  part  of  the  testator's  estate,  that  is  the  defendant,  had 
actually  promised  to  secure  and  pay  the  additional  15  pounds  per 
annum  to  the  plaintiff,  when  the  testator  talked  of  making  a  second 
codicil  to  his  will  for  the  very  purpose  of  bequeathing  this  additional 
sum.  Where  then  is  there  any  evidence  that  John  Hoge  ever  soli- 
cited the  testator  to  make  him  devisee  in  his  will  of  one  third  of  his 
real  estate,  and  to  induce  him  to  do  so  promised  to  hold  it  in  trust  7 
Thomas  M'Giffin,  the  first  witness,  merely  says  that  when  he  men- 
tioned to  John  Hoge  the  disposition  that  his  brother  William  Hoge 
had  made  of  his  estate,  and  told  him  that  the  testator  said  it  was  a 
trust,  "  John  Hoge  replied"  " that  is  intended  for  young  William" 
and  then  adds  "  that  he  had  been  a  long  time  trying  to  get  him  to 
do  it,  but  he  had  not  the  courage,"  which  seem  to  show  that  he  had 
never  obtained  his,  the  testator's  consent  to  give  any  thing  to  young 
William.  George  Morgan  is  the  only  one  who  testifies  to  any  de- 
claration ever  having  been  made  by  John  Hoge,  that  could  possibly 
be  tortured  into  a  promise  by  him  to  the  testator,  who  says  that  John 
Hoge  told  him  "  one  third  of  the  real  estate  was  left  to  himself  in 
trust  for  young  William  Hoge  ;"  that  this  had  been  done  by  his  ad- 
vice, or  at  his  instance,  and  as  well  as  he  can  recollect,  mentioned  two 
reasons  for  this  ;  then  states  the  reasons,  which  are  silly  enough  to 
be  sure,  and  such  as  men  of  the  sense  of  John  Hoge  or  the  testator 
could  never  have  uttered.  It  is  evident  from  Morgan's  statement, 
that  his  recollection  was  very  imperfect  and  confused.  He  also  says 
that  John  Hoge  told  him  that  the  testator's  family  pride  would  not 
permit  him  to  do — what  1  To  give  his  real  estate  to  a  bastard  ;  as 
he  had  got  it  from  his  father  and  wished  it  to  be  kept  not  only  in  the 
family  name,  but  in  that  channel,  which  refutes  at  once  the  idea  of 
making  the  plaintiff  his  heir,  who  was  nullius  filius,  and  could  be 
heir,  by  operation  of  law,  to  nobody ;  and  not  descended  from  testa- 
tor's father,  and,  of  course,  out  of  the  channel.  This  is  the  kind  of 
testimony  relied  on  to  prove  a  promise  and  a  fraud,  and  to  take  the 
case  out  of  the  statute.  If  such  testimony  is  to  be  received,  in  order 
to  set  the  statute  aside,  a  George  Morgan  will  never  be  wanting  as  a 
witness  for  that  purpose.  Again,  it  is  said  that  John  Hoge  has  con- 
fessed the  trust,  and  therefore  it  is  taken  out  of  the  statute,  as  the 


196  SUPREME  COURT  [Pittsburgh, 

[Hoge  T.  Hoge.] 

danger  of  perjury  is  removed  by  his  confession.  This  is  as  great  a 
mistake,  or  misapplication  of  the  meaning  of  such  a  confession,  as 
has  ever  been  ruled  sufficient  to  (ake  a  case  out  of  the  statute  of 
frauds  and  perjuries.  A  confession,  that  must  be  proved  by  parol 
testimony,  has  never  been  determined  sufficient  for  that  purpose  in 
any  case.  But  we  have  the  confession  of  John  Hoge  in  writing,  and 
given  too  under  the  solemn  sanction  of  an  oath,  and  after  he  had 
divested  himself  completely  of  all  interest  or  claim  in  the  land. 
John  Hoge  was  certainly  a  man  of  the  first  respectability,  on  account 
of  his  intelligence  and  integrity.  The  court  have  his  testimony  on 
the  paper  book,  as  also  the  whole  of  the  testimony  that  was  given 
by  both  parties  to  the  jury  on  the  trial  of  the  cause.  They  will  see 
— unless  John  Hoge  has  perjured  himself,  which  no  disinterested 
man,  that  was  acquainted  with  Mr  Hoge  in  his  lifetime,  would  dare 
to  say — the  injurious  effect  of  admitting  parol  evidence  in  such  cases. 
Only  let  a  jury  have  the  name  of  testimony  before  them  when  a 
particular  feeling  and  excitement  are  got  up  in  favour  of  one  of  the 
litigant  parties,  and  no  matter  whether  the  testimony  has  any  bear- 
ing in  his  favour  or  not,  feeling  will  give  him  a  verdict.  It  is  also 
contended  by  the  plaintiff  in  error  that  no  consideration  was  shown, 
nor  did  any  exist  to  raise  and  support  a  trust  in  favour  of  the  plain- 
tiff below.  Inasmuch  as  John  Hoge  is  the  person,  and  the  only  one, 
named  in  the  will  as  the  devisee  of  the  land  in  dispute,  or  for  whose 
use  and  benefit  it  was  intended,  no  averment  can  be  made  that  it 
was  intended  for  the  use  and  benefit  of  any  other.  The  rule  laid 
down  on  this  point  is,  that  every  devise  implies  a  consideration  in 
itself,  and  no  averment  can  be  made  that  it  is  for  the  use  of  any 
other  than  the  devisee  named  in  the  will,  demon's  Case,  4  Co.  4  a  ; 
1  Cruise's  Dig.  206,  sec.  447,  55  ;  5  Cruise's  Dig.  9,  sec.  18,  19 ;  2 
Woodeson  363. 

So  if  a  man,  by  his  will  in  writing,  devise  land  to  his  wife,  in  hope 
that  she  will  leave  it  to  his  son,  this  shall  be  no  trust  for  the  son. 
1  Cha.  Ca.  310  ;  2  Corny  ri>s  Dig.,  Day's  ed.y  tit.  Chancery,  Trust,  4 
w,  p.  4,  in  the  margin  800. 

When  an  agreement  is  purely  voluntary,  not  supported  by  a  valu- 
able or  meritorious  consideration,  equity  will  not  enforce  the  execu- 
tion of  it.  Newland  on  Cont.  79  ;  Colmanv.  Sorrel,  I  Ves.  50;  S.  C. 
3  Bro.  Cha.  12,  12  Fes.  46.  It  cannot  be  pretended  that  there  is 
any  valuable  consideration  in  the  case  before  the  court.  Nor  is  there 
any  relationship  between  the  testator  and  the  plaintiff  below,  or  be- 
tween him  and  John  Hoge,  that  will  raise  a  good  or  meritorious  con- 
sideration. The  plaintiff  below  must  be  considered  as  a  mere 
stranger  to  them  both.  A  court  of  equity  will  not  enforce  a  volun- 
tary agreement  in  favour  of  an  illegitimate  child,  for  it  is  considered 
as  a  mere  volunteer :  although  the  parent  is  bound  in  morality  and 
law  to  support  such  child,  yet  a  court  of  equity,  following  the  rule 
of  law  that  a  bastard  is  nullius  Jilius,  considers  him  in  the  light  of  a 
mere  stranger.  Newland  on  Cont.  69,  70.  Thus  it  seems  that  the 


Sept.  1832.]  OF  PENNSYLVANIA.  197 

[Hoge  v.  Hoge.] 

law  not  only  considers  the  plaintiff  below  as  a  stranger  to  the  testa- 
tor, but  the  testator  himself  even  considered  him  so.  His  name  was 
not  mentioned  to  the  writer  of  the  will,  nor  to  any  body  else  that  we 
have  heard  of.  The  land  in  dispute  is  given  expressly  to  John  Hoge 
by  the  testator,  who  at  the  time  declared  to  the  scrivener  that  ha,  had  no 
other  way  of  doing  it,  repeating  this  declaration  twice  over.  Whereas 
if  he  had  intended  any  benefit  to  the  plaintiff,  he  could  not  have 
said  so.  The  declaration  of  the  testator  is,  I  think,  very  satisfacto- 
rily explained  and  accounted  for  by  John  Hoge  in  his  deposition. 

Mr  Ewing's  argument  goes  on  the  ground  that  John  Hoge  was  a 
trustee.  He  assumes  the  fact  in  dispute,  and  all  his  authorities  are 
predicated  upon  it.  He  says  that  John  Hoge  confessed  the  trust — if 
so,  I  should  suppose  Hoge's  whole  confession  must  be  taken  together, 
and  that  clearly  shows  that  plaintiff  below  had  no  claim.  The  state- 
ment of  John  Hoge  is  clear  and  susceptible  of  a  rational  construction 
and  interpretation ;  give  it  that,  and  the  plaintiff  below  can  have  no 
claim.  Again,  he  says,  that  the  verdict  of  the  jury  assumes  that 
John  Hoge  is  perjured.  Hoge  had  no  agency  in  bringing  about  the 
compromise.  It  was  not  shown  that  he  had  interfered  in  any  way  ; 
the  question  was,  trust  or  no  trust  for  William  Hoge  ?  and  that  was 
the  matter  compromised.  The  settlement,  to  say  the  least  of  it,  was 
not  of  an  acknowledged  claim,  but  of  one  admitting  of  great  doubt ; 
a  purchase  of  peace,  on  the  part  of  the  defendant  below  ;  for  which 
he  pays  the  land  in  Mercer  county  1  Why  talk  of  inadequacy  of 
price,  when  no  evidence  was  given  on  that  subject,  arid  the  question 
was  not  made  in  the  court  below  1  This  case  shows  the  ease  with 
which  the  minds  of  jurors  are  occasionally  led  to  sacrifice  justice  to 
feeling.  Can  an  instance  be  shown  of  a  compromise  fairly  made,  as 
this  one  was,  and  carried  into  execution,  being  afterwards  set  aside? 
The  land  was  received  and  sold  by  young  William  Hoge,  and  the 
money  received  by  him,  and  he  lies  by  seven  years,  until  the  death 
of  the  principal  witnesses  against  him,  before  he  appeals  to  the  popu- 
lar and  levelling  feelings  of  a  jury,  with  whom  John  Hoge's  and  old 
William  Hoge's  ideas  about  family  names  and  estates  would  not  go 
down.  To  show  that  a  gratuitous  promise  will  not  support  a  bill  in 
equity,  any  more  than  it  will  an  action  at  law,  I  refer  to  3  P.  Wms 
131,317;  1  Vernonl2;  I  Fes.  507;  7  Johns.  207,  322;  10  Johns. 
241,  594. 

I  consider  the  three  first  errors  assigned  fully  noticed  and  esta- 
blished, and  will  come  to  the  fourth. 

What  is  and  ought  to  be  considered  a  reasonable  time,  within 
which  a  person,  who  pretends  to  have  such  a  claim  as  the  plaintiff 
below,  ought  to  prosecute  and  assert  his  right  to  it  1  "  It  is  a  maxim 
as  well  of  equity  as  of  law,  leges  subserviunt  vigilantibus  etnon  dormienti- 
6ws,"  says  Justice  Duncan,  in  Peebles  v.  Reading,8Serg.  fy  Rawle  494. 
"  It  is  on  this  principle,  that  an  unexecuted  location,  description,  or 
even  warrant,  with  money  paid,  loses  its  priority  after  a  delay  in 
executing  the  contract  by  survey  of  much  shorter  continuance  than 


198  SUPREME  COURT  [Pittsburgh, 

[Hoge  v.  Hoge.] 

was  in  this  case"  [which  was  something  less  than  fourteen  years]. 
"  The  claimant,  in  opposition  to  the  legal  title,  should  not  delay 
asserting  his  right,  as  a  stale  claim  will  meet  with  little  attention." 
See  Sugden  415,  who  says,  "  unless  the  trust  arise  on  the  face  of  the 
deed  itself,  the  proofs  must  be  very  clear;  and  however  clear  they  may 
be,  it  seems  doubtful  whether  parol  evidence  is  admissible  against  the 
answer  of  the  trustee  denying  the  trust.  And  in  cases  of  this  nature, 
the  claimant  in  opposition  to  the  legal  title,  should  not  delay  asserting 
his  right,  as  a  stale  claim  will  meet  with  little  attention."  See  also 
Delane  v.  Delane,  4  Bro.  Par.  Ca.  258,  where  a  clear  case  of  a  re- 
sulting trust  was  made  out  in  favour  of  the  complainant,  who  had 
delayed  commencing  his  suit  seventeen  years,  but  was  a  minor,  and 
abroad  at  the  time  the  right  descended  to  him  from  his  ancestor. 
His  bill,  however,  was  dismissed  on  account  of  his  delay  to  assert  his 
right  earlier. 

The  utmost  limitation  allowed  for  commencing  a  suit  for  such 
claims  in  Pennsylvania,  I  apprehend,  has  been  seven  years.  As 
often  as  the  legislature  have  turned  their  attention  to  such  cases, 
that  appears  to  be  the  time  which  they  have  allowed.  Indeed,  in 
1705,  the  legislature  passed  an  act  for  the  purpose  of  securing  to, 
and  confirming  to  persons  who  had  been  in  the  possession  of  lands 
seven  years  under  an  equitable  right,  an  unquestionable  title  to  the  same 
against  all.  Thus  postponing  and  setting  aside  legal  titles  to  lands 
in  favour  of  those  who  had  held  an  adverse  possession  of  them  under 
equitable  titles.  Purdon's  Dig.  530.  So  in  the  fifth  section  of  the 
act  of  the  26th  March  1785,  Purdon's  Dig.  532,  it  is  provided  that 
"  no  person  or  persons  that  now  hath  or  have  any  claim  to  the  pos- 
session of  any  lands,  tenements  or  hereditaments,  or  the  preemption 
thereof  from  the  commonwealth,  founded  upon  any  prior  warrant, 
whereon  no  survey  has  been  made,  or  in  consequence  of  any  prior 
settlement,  improvement  or  occupation,  without  other  title,  shall 
hereafter  enter,  or  bring  any  action  for  the  recovery  thereof,  unless 
he,  she  or  they,  or  his,  her  or  their  ancestors  or  predecessors  have  had 
the  quiet  and  peaceable  possession  of  the  same  within  seven  years  next 
before  such  entry  or  bringing  such  action."  The  will  of  the  testa- 
tor, it  will  be  observed,  was  proved  on  the  9th  of  November  1814. 
A  suit  was  commenced  in  April  1820,  compromised  and  discontinued 
the  29lh  of  August  in  the  same  year.  From  this  time,  when  it  was 
believed  by  every  body  that  the  claim  of  the  plaintiff  below  was 
finally  settled  and  put  to  rest  for  ever,  he  lies  by  until  the  27th  of 
October  1827,  a  space  of  seven  years  and  three  months.  Is  it  not 
for  the  interest  of  the  community  that  claims,  such  as  the  plaintiff 
below  pretends  to  have  in  this  case,  which  are  to  be  established  by 
parol  evidence,  in  direct  opposition  to  every  thing  that  has  been 
committed  to  writing  on  the  subject,  as  also  the  regular  muniments 
of  title  to  the  land  in  dispute,  should  be  prosecuted  with  vigilance, 
and  not  suffered  to  slumber  until  witnesses  who  might  be  all  impor- 
tant for  the  party  in  possession  under  the  legal  title  are  dead]  That 


Sept.  1832.]  OF  PENNSYLVANIA.  199 

[Hoge  v.  Hoge.] 

was  really  the  case  with  respect  to  the  defendants  below  in  the  pre- 
sent case.  John  Hoge  and  Parker  Campbell,  Esquires,  both  very  im- 
portant witnesses  for  the  defendants,  had  they  been  living,  in  the 
mean  time,  had  died.  This  circumstance,  no  doubt,  had  its  weight 
with  the  plaintiff  for  bringing  this  his  second  suit.  If  the  statute  of 
wills,  as  well  as  the  statute  against  frauds  and  perjuries,  is  to  be  pros- 
trated, to  make  way  for  such  claims,  and  the  party  to  be  indulged 
until  he  may  think  a  suitable  time  has  come  round  for  asserting  his 
claim,  the  owners  of  real  estates  will  hold  them  by  a  very  brittle 
tenure  indeed.  We  claim  that  the  court  below  ought,  therefore,  to 
have  charged  the  jury,  as  matter  of  law,  that  the  plaintiff  was  barred 
of  his  claim  by  lapse  of  time. 

As  to  the  fifth  error  assigned.  I  must  here  repeat  that  the  paper 
book  contains  all  the  evidence  given  on  the  trial  below  by  either  side. 
The  plaintiff,  as  it  appeared  from  evidence,  had  no  evidence  on  the 
trial  of  this  case  that  he  had  not  before  the  arbitrators  in  the  former 
action,  except  Jacob  Henry,  who  certainly  did  not  improve  his  case 
any.  Why  then  did  the  court  talk  of  the  defendant's  taking  any  un- 
due advantage  of  the  plaintiff's  ignorance  in  making  the  compromise  ? 
The  court  could  not,  I  presume,  have  meant  ignorance  of  the  facts, 
because  the  defendant  in  the  mean  time  had  got  no  new  testimony 
whatever.  He  was  as  well  informed  of  the  matters  of  fact  at  the 
time  of  compromise,  as  at  the  time  of  commencing,  or  even  trial  of 
the  cause,  and  so  the  court  ought  to  have  told  the  jury,  as  they  un- 
dertook to  speak  of  ignorance;  otherwise,  it  was  calculated  to  mislead 
the  jury  as  to  the  testimony  of  the  facts.  If,  however,  the  court 
meant  ignorance  of  the  law,  then  there  was  error  in  this,  for  I  take  it 
to  be  well  established,  that  ignorance  of  the  law,  if  the  party  be  ac- 
quainted with  the  facts,  forms  no  ground  for  relief,  even  in  equity. 
He  shall  be  bound  by  his  contract.  Every  man,  says  Chancellor 
Kent,  is  to  be  charged,  at  his  peril,  with  a  knowledge  of  the  law.  2 
Johns.  Cha.  Rep.  60;  1  Ibid.  516.  Indeed  I  consider  it  a  maxim  in 
both  civil  and  criminal  jurisprudence  :  ignorantia  juris  non  excusat. 
Doug.  Rep.  471;  Bilbie  v.  Lumley  et  al.,  2  East  469.  In  the 
Doctor  and  Student,  a  book  of  high  authority,  it  is  said,  page  79, 
"  ignorance  of  the  deed  may  excuse,  but  ignorance  of  the  law  ex- 
cuseth  not."  See  also  Chitty  on  Sills  250  ;  Brown  v.  Jlrmstead,  6 
Rand.  601. 

The  case  of  Millikin  v.  Brown,  1  Rawle  398,  involved  this  very 
principle,  and  the  decision  of  the  court  confirms  the  truth  of  it. 
It  is  there  conceded  by  his  honour  Judge  Huston,  who  delivered 
the  opinion  of  the  court,  that  Millikin,  in  giving  the  receipt  to  John 
Watson  for  his  part  of  a  judgment  which  Millikin  had  against  Wat- 
son jointly  with  John  and  William  Brown,  Jun.,  had  no  intention  of 
releasing  the  Browns,  and  that  he  never  even  suspected  it  could  have 
any  such  effect ;  yet,  inasmuch  as  he  was  bound  to  know  the  law, 
the  court  decided  that  he  must  abide  by  the  legal  consequence  of 
his  act.  So  in  Richter  v.  Selin,  8  Serg.  <$•  Rawle  438,  where  the 


200  SUPREME  COURT  [Pittsburgh, 

[Hoge  v.  Hoge.] 

indorscr  of  a  negotiable  note  to  whom  notice  of  a  demand  on  the 
drawer  had  been  given,  and  he  having  a  knowledge  of  the  facts,  pro- 
mised payment  of  the  amount  thereof,  it  was  held  that  he  was  bound 
by  his  promise,  and  that  ignorance  of  the  law  would  not  excuse  him. 
The  sixth  error.  We  say  that  our  ninth  point  was  not  answered 
by  the  court  below,  or  if  answered  at  all,  it  was  done  in  connexion 
with  a  reference  to  facts  and  circumstances,  of  which  not  a  tittle  of 
evidence  was  given  to  the  court  and  jury.  This  point  was  a  request 
to  the  court  to  charge  the  jury  "  that  unless  fraud  had  been  proved 
to  have  been  practised  by  David  Hoge  upon  the  plaintiff  in  making 
the  compromise,  it  was  good  and  binding  upon  him,  and  barred  him 
of  his  action."  The  court  below,  instead  of  answering  this  point, 
and  directing  the  jury  in  regard  to  it  separately  and  distinctly,  blend 
it  with  the  second,  third,  fourth,  fifth  and  sixth  points  made  by  the 
plaintiff  and  the  eleventh  of  the  defendant,  thus  rendering  it  difficult 
if  not  impracticable  for  the  jury  to  collect  any  separate  and  precise 
answer  from  the  court  to  the  defendant's  ninth  point.  But,  what  is 
still  worse,  the  court,  in  what  they  give  as  an  answer  on  this  subject, 
assume  facts  and  circumstances  which  were  not  in  proof,  but  rather 
indeed  expressly  negatived  by  the  evidence  on  the  trial.  These  facts, 
and  the  circumstances  of  which  we  complain  are  "  the  agency  or 
interference  of  John  Hoge  being  employed  to  effect  the  arrangement" 
(compromise);  "  the  embarrassed  situation  of  the  plaintiff  to  drive  an 
unconscionable  bargain,  contrary  to  justice  and  fairness;"  "gross  inad- 
equacy of  price,  connected  with  other  circumstances  of  overreaching." 
The  court  have  all  the  evidence  before  them  that  was  given  below 
by  either  party,  and  I  am  entirely  at  a  loss  to  see  in  what  part  it  is 
that  any  of  these  things  are  proved,  or  even  testified  to.  Nothing  of 
the  kind  appears.  Was  it  not  then  the  duty  of  the  court  below, 
upon  every  principle  of  fairness  and  justice,  instead  of  addressing 
the  jury  as  if  they  had  had  evidence  given  to  them  from  which 
they  might  fairly  infer  and  find  all  these  matters  and  facts  to  be 
true,  to  have  told  them  that  nothing  of  the  kind  appeared  in  the  evi- 
dence, and  that  they  could  and  ought  not  to  presume  them  to  be  so  *? 
For  instance  where  is  there  a  word  of  inadequacy  of  price  in  the 
evidence  *?  Not  a  syllable.  Or  of  David  Hoge's  employing  John 
Hoge  as  his  agent  to  effect  a  compromise,  or  for  any  other  purpose ; 
of  the  plaintiff's  necessitous  or  embarrassed  situation,  or  circumstances 
i  of  overreaching  ?  Does  it  not,  on  the  contrary,  appear,  that  the  com- 
promise was  made  and  entered  into  by  the  plaintiff,  with  the  advice 
of  his  counsel,  after  a  full  hearing  of  all  the  testimony,  and  of  course  a 
full  knowledge  of  the  facts  and  circumstances,  without  the  least  influ- 
ence being  used  or  attempted  by  John  Hoge,  David  Hoge,  his  counsel, 
or  the  arbitrators  1  It  does  not  appear  that  the  compromise  was  ever 
sought  for  by  David  Hoge,  his  counsel,  or  any  other  on  his  behalf ; 
but  was  entered  into  freely  by  the  plaintiff  below  under  the  advice  and 
direction  of  his  own  counsel,  without  even  the  influence  of  embar- 
rassment or  necessity  on  his  part,  from  any  thing  that  appears.  For 


Sept.  1832.]  OP  PENNSYLVANIA.  201 

[Hoge  v.  Hoge.] 

we  may  suppose  his  necessity  was  not  very  pressing,  when,  by  the 
terms  of  the  arrangement,  it  was  put  into  his  own  power  to  obtain  a 
deed  of  conveyance  from  Mr  David  Hoge  for  the  four  hundred  acres 
in  Mercer  county.  He  had  first  to  make  a  selection  of  it,  and  then 
David  Hoge  was  ready  to  execute  the  deed,  yet  he  did  not  ask  for  it 
for  more  than  a  year  afterwards,  when,  still  perfectly  satisfied  with  the 
compromise,  he  accepted  a  deed  from  David  Hoge  in  confirmation  of 
it,  and  not  until  after  that  again  did  he  sell  it.  I  confess  it  appears 
to  me  to  have  been  cruel  to  leave  it  to  the  jury  in  the  manner  in 
which  it  was  left,  by  such  observations  as  the  court  made. 

As  to  the  validity  of  the  compromise  independently  of  fraud,  no 
rational  doubt  can  I  apprehend  be  entertained.  All  the  authorities 
cited  on  the  other  side  as  to  the  law  and  principles  which  obtain  be- 
tween trustee  and  cestui  que  trust,  and  the  grounds  upon  which 
courts  of  equity  have  interfered  to  grant  relief  against  the  effect  of 
contracts  made  between  them,  and  of  setting  aside  overreaching 
bargains  made  with  young  and  extravagant  heirs  apparent,  or  per- 
sons under  embarrassed  circumstances,  &c.,  may  be  admitted  to 
have  been  correct,  but  surely  they  have  no  application  to  the  present 
case.  In  all,  the  relation  of  trustee  and  cestui  que  trust  was  ad- 
mitted to  exist.  So  in  the  cases  of  purchases  for  inadequate  prices, 
the  rights  of  the  sellers  to  the  estates  at  the  time  of  sale  were  clear  of 
all  dispute  and  admitted  to  be  in  the  sellers,  and  therefore  inadequacy 
of  price  with  other  circumstances  might  be  evidence  of  fraud,  as  over- 
reaching, on  the  part  of  the  purchasers.  But  in  the  present  case,  the 
fact  whether  John  Hoge  or  David  Hoge  was  a  trustee  for  the  plaintiff 
below,  and  he  had  a  right  or  claim  to  the  estate  as  the  cestui  que 
trust,  was  the  very  point  in  issue  between  the  parties.  Was  there 
any  ground  for  questioning  the  plaintiff's  right?  No  intelligent 
and  disinterested  person,  judging  from  the  evidence  that  was  given 
to  the  jury,  will  even  now  say  that  the  plaintiff  has  made  his  right 
to  the  property  in  dispute  manifest  in  any  point  of  view  whatever, 
either  in  fact  or  law.  It  is  perfectly  idle  then  to  speak  of  this  trans- 
action as  one  in  which  the  trustee  got  a  conveyance  from  the  cestui 
que  trust  of  his  right.  It  was  in  truth  a  compromise  of  a  real  sub- 
sisting dispute  and  controverted  right  between  the  parties.  If  so,  it 
is  no  objection  then  to  the  agreement  of  compromise  that  the  party, 
supposing  him  to  have  had  the  better  right,  gave  it  up  for  compara- 
tively a  trifling  consideration,  had  he  held  it  free  and  clear  of  all  dis- 
pute. Lord  Macclesfield  lays  it  down,  that  an  agreement  entered 
into  upon  a  supposition  of  right,  or  a  doubtful  right,  though  it  after- 
wards comes  out  that  the  right  was  on  the  other  side,  shall  be  bind- 
ing, and  the  right  shall  not  prevail  against  the  agreement.  In  Cann 
v.  Cann,  I  P.  Wms  727,  his  words  are  :  "  that  when  two  parties 
are  contending  in  this  court,  and  one  releases  his  pretensions  to  the 
other,  there  can  be  no  colour  to  set  this  release  aside,  because  the 
man  that  made  it  had  a  right;  for,  by  the  same  reason,  there  can 
be  no  such  thing  as  compromising  a  suit,  nor  room  for  any  accom- 
2  A 


JHJ  SUPREME  COURT  .       [Pittsburgh, 

iHoge  v.  Hoge.] 

modation ;  every  release  supposes  the  party  making  it  to  have  a 
right ;  but  this  can  be  no  reason  for  its  being  set  aside  ;  for  then 
every  release  might  be  avoided."  1  Atk.  10;  Cavode  v.  M'Kelvey, 
Addison  56  ;  JYctcJ.  on  Cont.  78  ;  Perkins  v.  Gray,  3  Serg.  fy  Rawle 
331,  332. 

We  contend  that  the  court  therefore  erred  greatly,  in  the  manner 
in  which  they  submitted  the  evidence  and  effect  of  this  compromise 
to  the  jury.  That  they  ought  to  have  told  the  jury,  in  so  many 
words,  that  the  agreement  of  compromise  was  most  binding  on  the 
plaintiff  below,  and  barred  his  recovery,  unless  indeed  it  was  infected 
with  fraud,  of  which  there  was  not  the  slightest  evidence,  and  they 
could  not  presume  it.  If  such  a  case  had  been  submitted  to  a  chan- 
cellor, what  would  he  have  said  1  Can  any  one  doubt*? 

The  seventh,  and  last  error  which  I  shall  notice,  raises  the  ques- 
tion, whether,  supposing  the  agreement  of  compromise  not  to  be 
binding  upon  the  plaintiff,  and  him  to  have  made  out  his  case,  in  all 
other  points,  to  the  satisfaction  of  the  court  and  jury,  he  ought  not, 
before  bringing  his  action,  to  have  made  and  tendered  to  David  Hoge 
a  deed  of  reconveyance  for  the  land  in  Mercer  county?  Here,  it 
must  be  observed,  that  the  legal  title  to  the  land  in  dispute  is  in  the 
defendants,  and  that  the  plaintiff  claims  to  recover  upon  sheer  equi- 
table principles.  What  does  equity  require  that  he  should  do,  before 
he  sWall  demand  of  the  defendant  to  surrender  to  him  the  possession 
of  the  land  in  dispute  1  Does  it  not  require,  at  least,  that  he  should 
restore  to  David  Hoge  the  property  which  he  has  taken  from  him  1 
Upon  what  principle  is  it  that  a  plaintiff  claims  to  recover  the  pos- 
session of  land  in  ejectment  upon  principles  purely  equitable,  in 
opposition  to  the  legal  title  "?  Is  it  not  upon  the  principle  that,  at  the 
time  of  bringing  his  action  of  ejectment,  he  is  entitled,  in  equity  and 
good  conscience,  to  be  invested  also  with  the  legal  title  ;  that  he  has 
a  right  in  equity  to  demand  that  it  shall  be  made  to  him  ;  and  that 
if  the  party  who  has  the  legal  title  had  done  what  in  equity  he 
ought  to  have  done,  he  would  have  conveyed  the  legal  title  to  him 
who  has  the  equitable?  But  not  having  done  so,  equity  will  con- 
sider that  as  already  done,  which  ought  to  have  been  done  ;  and, 
upon  the  idea  of  this  imputed  title  it  is,  that  the  party  having  the 
equitable  title  in  fact  only,  is  enabled  to  sustain  and  recover  in  his 
action  of  ejectment.  In  a  court  of  law,  if  the  plaintiff  be  entitled  to 
recover  in  any  form  of  action  where  damages  may  be  recovered,  he 
will  be  entitled  to  recover  costs  as  a  matter  of  course,  unless  it  be 
regulated  otherwise  by  statute.  In  courts  of  equity  it  is  otherwise  ; 
the  chancellor  can  exercise  his  discretion  about  giving  or  not  giving 
costs.  Hence  it  is  necessary  that  a  party  who  comes  into  a  court  of 
common  law  to  enforce  an  equitable  claim,  must  do  equity,  and 
every  thing  that  equity  requires  of  him  to  be  done,  before  he  shall 
commence  his  suit,  so  that,  consistently  with  the  principles  of  equity, 
he  may  be  entitled  to  recover  the  costs  also  of  his  suit.  This  matter 
is  very  clearly  and  satisfactorily  explained  by  his  honour  the  present 


Sept.  1832.]  OF  PENNSYLVANIA.  203 

[Hoge  v.  Hogo.J 

chief  justice,  who  delivered  the  opinion  of  the  court  in  the  case  of 
Snyder  v.  Wolfley,  8  Serg.  fy  Rawle  332,  who  says,  "  when  the 
plaintiff  has  a  title  to  recover  at  law,  and  the  defendant  has  an  equi- 
table claim  which  ought  to  be  first  satisfied,  it  has  been  held  that  a 
tender  at  the  time  of  trial  is  sufficient ;  or  perhaps  the  jury  might 
find  a  conditional  verdict ;  but  when  the  action  is  in  place  of  a  bill 
in  chancery,  and  the  plaintiff's  title  is  incomplete  in  equity,  the  rule 
is  different."  Now  it  seems  to  be  admitted  by  the  plaintiffs  counsel, 
that  his  title  to  the  land  is  incomplete,  in  equity,  until  he  shall  re- 
convey  the  Mercer  county  land,  or  at  least  make  compensation  for  it. 
And  even  if  he  did  not  admit  it,  could  any  body  doubt  of  it  ?  And 
in  that  case  it  was  decided,  that  an  action  could  not  be  maintained 
to  recover  the  prize  drawn  to  a  lottery  ticket  which  has  been  lost, 
without,  previously  to  the  commencement  of  the  suit,  giving  or  ten- 
dering an  indemnity  against  future  claims  founded  upon  it,  inasmuch 
as  by  its  terms  the  prize  was  made  payable  to  the  bearer.  So  in  the 
case  of  Chahoon  et  al.  v.  Hollenback,  16  Serg.  <$•  Rawle  433,  it  was 
held,  that  "  when  the  plaintiff  relies  on  an  equitable  title,  the  tender 
must  precede  the  action."  Besides,  take  the  common  case  of  a  man 
who  is  cheated  in  the  purchase  of  a  horse  or  other  article,  for  which 
the  purchaser  has  paid  to  the  seller  100  dollars  as  the  price,  by  the 
suppression  of  the  truth  or  suggestion  of  a  falsehood  on  the  sale. 
He  wishes  to  have  a  return  of  his  money  again  ;  and  to  bring  for 
that  purpose  an  action  for  money  had  and  received.  This  action, 
no  doubt,  may  be  maintained  on  the  ground  that  the  contract  is 
void  for  the  fraud  ;  but,  if  the  buyer  of  the  horse  wishes  to  avoid  the 
contract,  and  thereby  get  his  money  again,  what  must  he  do  before 
he  brings  his  action  1  Surely,  he  must  offer  at  least  to  return  the 
horse.  Norton  v.  Young,  3  Greenleaf's  Rep.  30 ;  Kimball  v.  Cun- 
ningham, 4  Mass.  502;  Conner  v.  Henderson,  15  Mass.  319  ;  Young' 
v.  Mams,  6  Mass.  182 ;  JVf'JVemn  v.  Livingston,  17  Johns.  437;  Hunt  v. 
Silk,  5  East  452  ;  Lawrence  v.  Dale,  3  Johns.  Cha.  Rep.  42. 

It  does  appear  that  the  court  below  were  manifestly  wrong,  in 
their  charge  to  the  jury  on  this  head  ;  and  I,  therefore,  submit  the 
case  without  further  argument. 

A*.  Ewing,  for  defendant  in  error. 

The  only  material  question  in  this  cause  is,  whether  the  court 
below  erred  in  admitting  parol  evidence  to  establish  a  trust  in  John 
Hoge  ?  The  other  exceptions  are  either  not  supported  in  fact,  or 
have  nothing  in  them.  The  question  then  is,  does  the  statute  of 
frauds  of  Pennsylvania  prohibit  a,  parol  declaration  of  trust  1  Unless 
a  distinction  can  be  taken  between  estates  created  by  deed,  and 
those  created  by  will,  the  point  appears  to  me  as  well  settled  as  any 
other  in  Pennsylvania.  It  is  said  by  Chief  Justice  Gibson  in  the  case 
of  A.  Hampton,  Guardian,  17  Serg.  <$•  Rawle  148,  "  that  to  prove  a  trust, 
is  one  of  those  cases  in  whichparol  evidenceis  admissible,"  and  Chief  Justice 
Tilghman,  in  the  Lessee  of  German  v.  Gobbald,  3  Binn.  304,  says  that 


204  SUPREME  COURT  [Pittsburgh 

[Hoge  v.  Hoge.] 

the  provision  of  our  statute  "  seems  to  apply  rather  to  legal  estates  than 
trusts"  and  notices  that,  the  English  legislature  so  considered  it, 
as  they  added  a  provision  with  respect  to  trusts  in  the  seventh  and  eighth 
sections  of  their  statute  which  is  entirely  omitted  in  our  act  of  assembly. 
If  this  be  so,  the  question  is  at,  an  end,  and  the  cases  of  Thompson 
v.  White,  1  Doll  424;  and  Wallace  v.  Duffield,  2  Serg.  fy  Rawle 
521,  appear  to  establish  this  position.  In  the  latter  case  Jus- 
tice Gibson  declares  expressly,  that  it  is  not  a  resulting  trust ;  and 
Chief  Justice  Tilghman,  in  page  526,  says,  a  trust  might  not  result 
by  operation  of  law,  but  considers  the  investment  of  the  testator's  mo- 
ney strengthened  by  the  declarations  of  the  executors,  sufficient  to 
prove  an  express  trust,  and  in  page  527,  he  approved  of  the  charge 
of  the  court  below  to  the  jury,  that  the  law  would  not  raise  a  trust, 
unless  an  intention  to  create  it  was  proved  by  parol  or  other  declara- 
tions ;  and  Justice  Yeates,  in  page  528,  says,  "the  question  of  fact  was 
submitted  to  the  jury  whether  an  express  trust  was  not  proved,"  and 
approves  of  the  above  cited  part  of  the  charge  of  the  court  below. 
The  case  of  Thompson  v.  White,  to  which  I  shall  have  occasion 
again  to  call  the  particular  attention  of  the  court,  appears  to  be  re- 
cognized and  approved  by  Justice  Huston  in  the  case  of  Thompson  v. 
M'Canahan,  17  Serg.  <$•  Rawle  112  and  113  ;  after  stating  the  facts 
of  the  case,  he  says,  "  proof  was  admitted  that  these  conveyances, 
though  on  the  face  of  them  absolute,  were,  in  fact,  in  trust ;  what  that 
trust  was,  and/or  whom,  was  made  out  byparoL"  In  the  case  of  Peebles 
v.  Reading,  8  Serg.  fy  Rawle  484,  the  broad  and  naked  question  is 
presented  and  decided,  that  our  statute  does  not  prevent  a  declaration 
of  trust  by  parol.  Justice  Duncan,  who  delivers  the  opinion  of  the 
court,  says,  in  page  492,  "  this  is  not  a  resulting  trust;"  and  this  is 
one  of  the  strongest  possible  cases:  a  purchaser  at  sheriff's  sale, 
who  paid  his  own  money,  and  took  possession  of  the  property  pur- 
chased, was  by  parol  proof  alone  made  a  trustee  for  the  defendant  in 
the  execution.  In  this  case  Justice  Duncan  also  notices  the  import- 
ant variance  in  our  act  from  the  English  statute,  in  omitting  the 
seventh  section  of  the  latter  respecting  trusts,  and  he  adds,  this 
omission  cannot  be  imputed  to  accident.  But  were  it  necessary,  it  would 
be  no  difficult  task  to  show  that  in  the  case  before  the  court  parol 
evidence  is  admissible,  even  under  the  English  statute,  and  I  would 
here  call  the  attention  of  the  court  to  some  part  of  the  evidence, 
which  assimilates  this  case  to  the  case  of  Thompson  v.  White,  as 
well  as  takes  it  out  of  the  operation  of  the  English  statute.  By 
the  testimony  of  George  Morgan,  it  appears  that  John  Hoge  con- 
fessed that  the  property  in  dispute  w^s  left  to  him  in  trust  for  the  plain- 
tiff; that  this  was  done  by  his  advice,  or  at  his  instance;  and  by  the  testi- 
mony of  Mr  WGijjin.  It  appears  that  when  the  testator  spoke  of  the 
difficulty  of  making  provision  for  the  plaintiff,  John  Hoge  suggested 
to  his  brother  to  give  it  to  him.  In  the  case  of  Reech  v.  Kennegal,  1 
Ves.  Sen.  123,  at  page  125  the  lord  chancellor  says,  "  the  court  has 
adhered  to  this  principle,  that  the  statute  should  never  be  understood  to 


Sept.  1832.]  OF  PENNSYLVANIA.  205 

V 

[Hoge  v.  Hoge.] 

protect  fraud,  and  therefore  wherever  a  case  is  infected  with  fraud,  the 
court  will  not  suffer  the  statute  to  protect  it  so  as  that  any  one  should 
run  away  with  a  benefit  not  intended. "  See  same  case  (Reech  v.  Kenni- 
gate),  Ambler  67.  In  page  68,  it  is  said,  the  statute  was  not  designed 
to  protect  frauds ;  and  in  Hutchins  v.  Lee,  I  Jltk.  447,  where  an  abso- 
lute assignment  was  decreed  a  trust,  upon  parol  evidence,  it  is  said  that 
parol  evidence  is  admissible  in  evidence  of  fraud;  and  Chief  Justice 
M'Kean,  in  1  Doll.  427,  says,  "  the  statute  and  act  of  assembly 
were  made  to  prevent  frau  ds  as  well  as  perjuries;  they  should  be 
construed  liberally,  and  beneficially  expounded,  for  the  suppression 
of  cheats  and  wrongs."  In  page  428,  he  says,  "  here  was  a  breach  of 
trust  in  Lawrence  Salter,  a.  fraud  in  law,  which  is  not  within  the  act. 
This  is  the  reason  of  our  judgment."  In  cases  of  fraud,  and  where 
transactions  have  been  carried  on  mala  fide,  there  is  a  resulting  trust 
by  operation  of  law  ;  Lloyd  v.  Spillet,  2  Jltk.  1 50.  Per  Duncan,  Justice, 
in  Peebles  v.  Reading,  8  Serg.  fy  Rawle  492 ;  and  per  Tilghman,  in 
Lessee  of  German  v.  Gobbald,  3  Binn.  305.  Now  trusts  resulting 
by  operation  of  law  are  expressly  excepted  out  of  the  English 
statute  by  the  eighth  section.  In  Thompson  v.  White,  the  only 
fraud  of  which  Lawrence  Salter  wns  guilty,  was  his  neglecting  to 
perform  the  promise  or  undertaking  which  induced  his  wife  to 
vest  the  title  to  the  property  in  dispute  in  him.  This  breach  of 
trust  is  considered  a  fraud  in  law,  a  fraud  on  the  person  creating 
the  trust  or  reposing  the  confidence.  This  is  the  principle  upon 
which  many  of  the  cases  there  cited,  turn.  The  cases  of  Thynn 
v.  Thynn,  1  Fern.  296 ;  Eq.  Ca.  Jlbr.  380,  pi.  6  ;  Reech  v.  Kennegal, 
I  Ves.  Sen.  123,  Mr.  67 ;  and  Drakeford  v.  Wilks  et  al,  to  which  th<i 
particular  attention  of  the  court  is  called,  are  all.  cases  of  wills ;  as  are 
also  the  cases  of  Kingsman  v.  Kingsman,  2  Fern.  559,  and  Devenish 
v.  Baines,  Prec.  Cha.  3  :  so  that  it  cannot  be  said  the  cases  of  wills  can 
be  distinguished  from  those  of  deeds ;  and  in  many  of  the  foregoing 
cases  the  facts- are  precisely  similar  to  those  of  the  present  case.  The 
defendants  obtained  the  interests  which  they  attempted  to  hold,  at 
their  own  solicitation,  and  by  promising  to  hold  as  trustees  for  others. 
Here  John  Hoge  solicits  and  prevails  on  his  brother  to  give  him  the  pro- 
perty, by  promising  to  be  a  trustee  for  the  plaintiff.  Shall  he  then  be 
permitted  to  shelter  himself  under  the  statute]  Shall  the  statute  be 
construed  to  protect  and  sanction  such  monstrous  fraud  and  iniquity7? 
Where  it  is  agreed  that  the  terms  of  a  contract  shall  be  reduced  to 
writing,  which  is  prevented  by  the  fraud  of  one  party,  the  contract 
will  be  established  ;  and  why  1  Because  a  statute  made  to  protect 
against  frauds  shall  not  be  made  the  instrument  of  fraud. 

To  prove  that  the  provisions  in  wills  are  liable  to  be  affected  by 
parol  evidence  as  well  as  those  of  deeds,  I  refer  the  court  to  the 
late  case  of  Baily  v.  Herkes,  I  Penns.  Rep.  126. 

The  second  error  assigned,  I  consider  disposed  of  with  the  first. 

After  establishing  the  doctrine  contended  for  in  considering  the 
first  exception,  the  only  question  remaining  in  the  third  exception  is, 


206  SUPREME  COURT  [Pittsburgh, 

[Hoge  v.  Hoge.] 

whether  a  trust  may  be  declared  to  a  bastard.  Upon  this  question  I 
presume  there  can  be  no  difficulty ;  for  though  bastards  are  not  con- 
sidered as  children  for  whom  a  consideration  of  blood  will  raise  an 
use,  when  the  possession  remains  in  the  party  creating  the  use  or  trust; 
yet  where  the  estate  is  actually  passed  to  a  third  person,  where  tliere  ia 
a  transmutation  of  possession,  a  use  may  be  as  well  declared  to  a 
bastard,  being  in  esse  and  sufficiently  described,  as  to 'any  other  per- 
son. See  Hargrove's  Note  8,  to  Co.  Litt.  123,  a.;  Fonbl.  Eq.  124,  n. 
(Am.  Ed.  1820). 

To  the  fourth  exception  we  reply,  that  twenty  years,  by  ana- 
logy to  the  statute  of  limitations,  is  the  period  allowed  by  chancery 
for  commencing  proceedings  to  set  aside  conveyances  of  real  estate 
on  the  ground  of  fraud.  See  Wallace  v.  Duffield,  2  Serg.  fy  Rawle 
521  ;  Morse  v.  Royal,  12  Ves.  374,  377 ;  4  Desaus.  706.  In  the  fifth 
exception  there  is  nothing ;  the  answer  of  the  court  is  sufficiently 
explicit ;  and  particularly  when  taken  in  connexion  with  the  other 
parts  of  the  charge,  is  by  no  means  vague  and  ambiguous,  and  I 
contend  that  it  is  too  favourable  to  the  defendant.  The  court  will 
observe  that  David  Hoge  takes  as  a  volunteer  from  John  Hoge,  and 
of  course  as  a  trustee,  as  John  Hoge  was.  Macreth  v.  Symmons,  15 
Ves.  Jun.  329,  336,  350 ;  1  Scho.  <$•  Lefr.  262;  Talb.  261  ;  2  P.  Wms 
681.  It  will  also  be  observed  that  the  conveyance  of  John  Hoge  to 
David  was  made  five  days  before  the  release  of  the  plaintiff  to  David. 
During  that  period  then,  he  stands  precisely  as  John  Hoge  stood.  Now 
it  may  well  be  questioned,  whether  a  court  of  chancery  would,  under 
any  circumstances,  sanction  the  purchase  of  the  trustee  from  the  cestui 
que  trust :  and  most  certainly  it  would  not,  when,  at  the  moment  of 
the  purchase,  the  trustee  was  denying  and  controverting  the  title  of 
his  cestui  que  trust.  See  Church  v.  Marine  Ins.  Co.,  1  Mason  341 ; 
Clement  v.  Peters,  Coze's  Dig.  U.  S.  Rep*  726,  pi.  38 ;  Munroe  v.  Allaire,  2 
Caines's  Cos.  in  Er.  183.  A  release  by  cestui  que  trust  to  trustee  cannot 
vest  any  beneficial  interest  in  the  jrustee.  Per  TUghman  and  Yeates, 
in  Newlin  v.  Newlin,  1  Serg.  fy  'Rawle  279,  280;  and  per  Bradford, 
Judge,  in  Bixler  and  wife  v.  KunJde's  Executors,  17  Serg.  fy  Rawle"304 ; 
and  by  Todd,  Judge,  in  the  same  case,  308,  310.  And  although  some 
of  the  cases  do  not  make  a  purchase  by  the  trustee  from  the  cestui 
que  trust,  absolutely  void  if  fairly  and  openly  made  ;  yet  even  these 
cases  say  that  it  is  looked  upon  with  the  greatest  jealousy,  and  that 
there  must  not  be  the  least  tincture  of  fraud  or  inadequacy  ;  and  be- 
fore a  trustee  can  deal  with  his  cestui  que  trust,  the  relation  must  in 
some  way  be  dissolved  ;  or  if  not,  the  parties  must  be  put  so  much  at 
arm's  length  that  they  agree  to  take  the  character  of  purchaser  and 
vendor,  and  all  the  duties  of  those  characters  must  be  performed. 
Davis  v.  Laing,  2  Johns.  Cha.  Rep.  259,  257,  260;  6  Ves.  277;  2 
Bro.  427,  note. 

In  examining  this  case  the  court  will  bear  in  mind,  that  it  is 
established  by  tire  verdict  of  the  jury,  that  John  Hoge,  the  original 
trustee,  was  perjured  in  the  testimony  he  gave  in  the  cause.  Here 


Sept.  1832.]  OF  PENNSYLVANIA.  207 

[Hoge  v.  Hoge.] 

then  is  a  trustee,  after  suit  brought  against  him  for  the  trust  pro- 
perty, conveying  to  his  brother,  and  presenting  himself  as  a  witness, 
and  by  perjury  denying  the  trust,  and  thus  inducing  the  cestui  que 
trust  to  convey  to  the  trustee.  The  jury  have  further  established 
David  Hoge's  privity  to  all  this.  But  for  argument  sake,  suppose 
him  innocent ;  can  he  hold  the  property  thus  iniquitously  acquired  1 
Interests  obtained  through  the  fraud  of  another  person  cannot  be 
maintained  by  third  persons,  although  not  themselves  parties  to  the 
imposition.  Huguenin  v.  Baseley,  14  Fes.  Jun.  288  ;  Bridgeman  v. 
Green,  2  Fes.  Sen.  627,  S.  C.  Wilm.  64.  See  Inhabitants  of  Wor- 
cester v.  Eaton,  13  Mass.  376.  The  person  receiving  property  "  must 
take  it  tainted  and  infected  with  the  undue  influence  and  imposition  of  the 
person  procuring  the  gift"  "  Let  the  hand  receiving  it  be  ever  so  chaste, 
yet  if  it  comes  through  a  polluted  channel,  the  obligation  of  restitution  will 
follow."  Per  Wilmot,  in  Bridgeman  v.  Green,  Wilm.  64,  cited  with 
approbation  by  Lord  Eldon,  in  Huguenin  v.  Baseley,  14  Fes.  Jun.  289. 
Fraud  vitiates  an  agreement,  and  a  principal,  though  innocent  of  the 
fraud,  cannot  avail  himself  of  such  fraudulent  agreement  made  by 
his  agent.  Owens  v.  Whitaker,  Hughes's  (Kent.)  Rep.  71  ;  Taylour  v. 
Rochford,  2  Fes.  Sen.  281.  Now,  in  the  case  before  the  court,  it 
must  be  taken  as  established,  that  John  Hoge  acted  as  the  agent  of 
David  Hoge,  and  that  the  release  was  procured  through  his  instru- 
mentality, by  his  imposition  and  false  representations.  The  court 
will  recollect  that  here  is  a  property  valued  by  John  Hoge,  the 
trustee,  at  15,000  dollars,  released  by  the  cestui  que  trust  to  his  trustee 
for  940  dollars,  or  property  of  that  value.  Ought  not  the  court 
below  to  have  instructed  the  jury  that  this  gross  inadequacy,  con- 
nected with  the  situation,  circumstances,  and  relation  of  the  parties, 
was  such  strong,  overwhelming  and  conclusive  evidence  of  fraud,  imposi- 
tion and  oppression,  as  to  invalidate  the  whole  transaction.  In  the 
case  of  Butler  v.  Haskell,  4  Desaussure  651  ;  where  one  fourth  was 
paid  :  the  chancellor,  at  page  687,  says,  "  the  courts  have  said,  that 
the  inadequacy  may  be  so  gross  as  to  furnish  strong  and  even  conclu- 
sive presumption  of  fraud,  and  that  in  this  way,  the  grossness  of  the 
inadequacy  may  avoid  the  sale;"  and  he  proceeds,  "  in  comparing  the 
inadequacy  existing  in  the  case  under  consideration  with  the  de- 
grees of  inadequacy  existing  in  the  decided  cases,  it  seems  to  come 
completely  within  that  degree  of  gross  inadequacy  which  furnished 
the  presumption,  and  vitiated  the  contracts."  In  our  case  t  he  inade- 
quacy is  nearly  four  times  greater  than  that  which  Chancellor 
Desaussure  held  to  come  within  the  decided  cases  and  to  vitiate  a 
sale.  Instead  of  receiving  one-fourth  of  the  value  of  the  pro- 
perty sold,  the  plaintiff  received  but  a  fraction  over  a  sixteenth. 
In  the  case  of  Baugh  v.  Price,  1  Wils.  320,  the  inadequacy  did 
did  not  amount  to  one  half.  To  this  and  the  other  cases  cited 
in  the  above  mentioned  case  of  Butler  v.  Haskell,  I  particularly 
refer  the  court,  not  only  as  establishing  the  principle  now  under 
consideration,  but  to  prove  that  the  compromise  of  the  original  suit 


208  SUPREME  COURT  [Pittsburgh, 

[Hoge  v.  Hoge.] 

does  not  place  the  defendant  on  better  ground  than  he  originally 
occupied.  In  the  case  of  Sutler  v.  Haskell,  at  p.  697,  the  chancellor 
concludes  thus :  "  I  consider  the  result  of  the  great  body  of  the  cases 
to  be,  that  wherever  the  court  perceives  that  a  sale  of  property  has 
been  made  at  a  grossly  inadequate  price,  such  as  would  shock  a 
correct  mind,  this  inadequacy  furnishes  a  strong  and  in  general  a 
conclusive  presumption  (though  there  be  no  direct  proof  of  fraud)  that 
an  undue  advantage  has  been  taken  of  the  ignorance,  the  weakness, 
or  the  distress  or  necessity  of  the  vendor." 

In  the  case  of  Bowes  v.  Heaps,  3  Ves.  fy  B.  119,  where  it  was  not 
imputed  to  the  defendants  that  they  used  any  endeavours  to  induce 
the  plaintiff  to  enter  into  the  transaction,  but  merely  acceded  to  the 
proposal  that  was  made  them ;  the  master  of  the  rolls  declared,  that 
it  was  not  every  bargain  which  distress  may  induce  one  man  to  offer, 
that  another  is  at  liberty  to  accept.  The  mere  absence  of  fraud  does 
not  necessarily  decide  the  validity  of  the  transaction,  as  is  proved  by 
many  cases,  from  Berney  v.  Pitt,  2  Cha.  Rep.  396,  2  Fern.  14,  down 
to  Gwynne  v.  Heaton,  1  Bro.  Cha.  Rep.  1.  In  the  latter  case,  Lord 
Thurlow  says,  the  defendant  is  not  charged  with  misleading  the 
plaintiff's  judgment,  or  tampering  with  his  poverty.  In  that  case 
too,  as  in  this,  the  bargain  had  been  hawked  about  and  offered  to 
many  persons.  That,  Lord  Thurlow  says,  only  shows  the  distress  of 
the  borrower.  In  the  case  of  Chesterfield  v.  Janssen,  2  Ves.  Sen. 
125,  1  Jltk.  301,  where  the  defendant  loaned  5000  pounds,  to  be 
repaid  10,000  pounds,  only  on  the  contingency  of  the  borrower  sur- 
viving his  grandmother.  The  borrower,  John  Spencer,  was  about 
thirty  years  of  age,  impaired  in  constitution ;  his  grandmother 
seventy-eight,  of  good  constitution,  and  careful  of  her  health.  He 
sent  the  proposal  to  market.  It  was  rejected  by  several  knowing  ones, 
and  at  first  by  the  defendant,  but  afterwards  accepted  by  him.  The 
grandmother  lived  six  years  and  three  months,  and  Spencer  survived 
her  one  year  and  eight  months.  At  the  time  of  this  transaction, 
John  Spencer  possessed  an  income  of  7000  pounds  per  annum,  and  a 
personal  estate  of  great  value.  Had  the  case  stood  on  its  original 
ground,  as  here  stated,  the  court  would  have  set  aside  the  transac- 
tion. It  was  sustained  only  on  the  ground  of  the  deliberate  confirma- 
tion by  John  Spencer,  and  the  renewal  of  his  bond  after  the  death  of 
his  grandmother.  In  the  above  cited  case  of  Gwynne  v.  Heaton, 
1  Bro.  Cha.  Rep.  1,  the  grant  of  a  reversionary  rent-charge,  after  the 
dealh  of  plaintiff's  father,  who  was  old  and  infirm,  upon  unreasona- 
ble terms,  was  set  aside ;  though  it  was  contended  for  the  defendant, 
that  he  was  not  a  dealer  in  such  transactions,  and  was  invited  into 
the  bargain,  and  the  terms  deliberately  settled  by  the  plaintiff  and  his 
friends ;  the  same  terms  having  been  offered  to  other  persons  ;  also 
that  Gwynne  was  not  an  expensive  young  man  dependent  on  his 
father  ;  that  there  was  a  contingency  too,  by  which  defendant  might 
have  lost  all  his  advances,  and  that  the  disproportion  was  not  enor- 
mous ;  for  if  the  father  had  lived  seven  years,  there  could  not  have 


Sept.  1832.]  OF  PENNSYLVANIA.  209 

[Hoge  v.  Hoge.] 

been  any  pretence  of  such  inequality  as  the  court  would  relieve 
against.  So  that  it  was  reduced  to  the  single  question,  whether  this 
agreement  was  upon  such  an  inadequate  consideration  that  this  court 
will  set  it  aside  on  that  ground  alone,  there  being  no  pretence  of  im- 
position. But  all  these  reasons  were  urged  in  vain,  as  it  appeared  that 
the  consideration  was  grossly  inadequate,  being,  as  was  stated,  three 
or  four  for  one.  The  lord  chancellor  said,  the  ground  for  relief  was 
gross  inequality — that  the  charges  of  fraud  and  oppression  were  not 
proved — that  the  vendor  made  the  offer  to  the  purchaser,  who  ac- 
cepted it  in  the  very  shape  it  was  offered,  and  did  not  labour  to  lower 
the  terms.  There  was  no  confidence  subsisting  between  the  seller  and 
the  buyer  ;  there  was  no  misleading  of  the  judgment  of  the  vendor,  nor 
tampering  with  his  poverty.  The  chancellor  there  reviews  the  de- 
cided cases,  and  shows  that  inadequacy  alone  cannot,  as  mere  inade- 
quacy, be  made  a  ground  for  setting  aside  a  contract,  yet  it  was,  when 
very  gross,  a  mask  of  fraud,  and,  in  that  way,  would  operate  to  vitiate 
the  bargain.  In  Butler  v.  Haskell,  4  Desaussure  687,  688,  the  chan- 
cellor says,  "  there  is  a  distinction  made  between  the  case  of  young 
heirs  selling  expectancies,  and  of  others,  which  I  am  not  disposed  to 
support.  It  is  said  that  the  former  are  watched  with  more  jealousy, 
and  more  easily  set  aside  than  others,  on  principles  of  public  policy. 
This  was  certainly  true  at  first ;  but  the  eminent  men  who  have  sat 
in  chancery  have  gradually  applied  the  great  principles  of  equity,  on 
which  relief  is  granted  to  every  case  where  the  dexterity  of  intelligent 
men  had  obtained  bargains  at  enormous  and  unconscientious  dispropor- 
tion, from  the  ignorance,  the  weakness  or  the  necessity  of  others, 
whether  young  heirs  or  not." 

In  the  case  before  the  court,  the  pendency  of  the  former  suit  and 
the  discontinuance  of  it,  at  the  time  and  in  consequence  of  the  com- 
promise, cannot  take  it  out  of  the  general  rule.  It  is  all  one  transac- 
tion, done  all  at  the  same  time.  There  is  no  subsequent,  distinct  and  in- 
dependent act  of  confirmation.  The  release  and  discontinuance  of  the 
suit  were  one  transaction  ;  and  nothing  is  done  subsequently  but  in 
pursuance  of  the  original  stipulation.  But  had  the  release  been  first 
given,  and  the  suit  afterwards  instituted  to  annul  it,  and  then  discon- 
tinued, from  any  consideration  whatever,  except  a  fair  and  adequate 
price,  we  are  not  without  authority  to  show  that  the  plaintiff  would 
still  be  at  liberty  to  assert  his  original  rights.  See  4  Desauss.  715. 
In  the  case  of  Taylour  v.  Rochford,  2  Ves.  Sen.  281,  the  plaintiff,  a 
seaman,  sold  his  prize  money  to  a  physician,  at  the  place  where  the 
prize  was  brought  in,  and  where  plaintiff  was  sick.  A  bill  was  filed 
in  chancery  to  set  aside  the  agreement.  A  second  agreement  recited 
the  first  bill  of  sale  for  150  pounds,  and  the  bill  in  chancery  which 
plaintiff  agreed  should  be  dismissed  with  costs,  and  in  consideration  of 
60  pounds  plaintiff  confirms  and  establishes  the  bill  of  sale,  and  re- 
nounces all  claim  on  account  of  the  prize  or  other  demands,  and  all 
suits  in  law  or  equity — both  agreements  were  set  aside. 

In  Broderick  v.  Broderick,  1  P.  Wms  239,  there  was  a  devise  to  J. 
2  B 


210  SUPREME  COURT  [Pittsburgh, 

[Hoge  v.  Hoge.] 

S.  by  a  will  defectively  executed  (the  witnesses  not  having  signed  in 
the  presence  of  the  testator).  Afterwards  the  heir,  in  consideration 
of  100  guineas,  released  to  J.  S.  all  his  right;  and  after  that/.  S., 
under  pretence  that  it  would  facilitate  the  raising  of  money  to  pay 
debts,  procured  the  heir,  for  50  guineas  more,  to  join  him  in  conveyance 
to  J.  N.  by  lease  and  release,  for  4000  pounds,  for  which  a  receipt  was 
given,  but  money  not  paid — J.  N  being  merely  a  trustee  for  J.  S. 
The  heir  was  relieved  against  both  deeds.  In  Jlrdglass  v.  J\fuschamp, 
1  Fern.  237,  after  the  grant  of  the  rent  charge,  the  grantor  made  a 
settlement  of  his  estate  repugnant  to  the  grant,  and  brought  his  bill  to 
be  relieved  against  the  grant,  alleging  that  it  was  obtained  by  fraud. 
After  which  bill  the  defendant  obtained  a  release  from  the  plaintiff,  the 
grantor.  The  grantor  died,  and  then  the  present  plaintiff  brought 
his  bill,  and  was  relieved  against  both  the  grant  and  release. 

In  Wiseman  v.  Broke,  2  Fern.  121,  the  plaintiff,  a  man  of  business 
and  experience,  near  forty  years  old,  entered  into  statutes  with  de- 
fendant's testator  for  payment  of  ten  for  one.  Afterwards  defend- 
ant's testator,  understanding  that  chancery  relieved  against  such 
bargains,  preferred  his  bill  against  plaintiff,  to  compel  him  either  to 
repay  the  money,  with  interest,  or  to  be  foreclosed  of  any  relief  against 
this  bargain,  and  plaintiff  elected  to  stand  to  the  bargain,  and  said  that 
it  was  fairly  and  duly  made,  and  that  he  would  not  seek  any  relief 
against  the  same.  Notwithstanding  all  this  plaintiff  was  relieved. 

So  in  Butler  v.  Haskell,  there  had  been  repeated  confirmations, 
after  an  .interval  of  years.  See  4  Desaus.  714,  715. 

In  Baugh  v.  Price,  1  Wilson  320,  Thomas  Baugh  on  the  21sf 
of  October  1739,  covenanted  to  convey  to  defendant  in  fee  simple  a 
remainder  expectant  upon  his  father's  life.  Soon  after  signing  the 
articles,  he  was  desirous  of  being  off  the  bargain,  but  defendant 
would  not  let  him  ;  and  on  the  3d  of  November  1739  he  executed  a 
lease  and  release.  On  the  8th  of  July  1740  his  father  died,  whereupon 
he  wrote  to  Price,  acquainting  him  with  the  fact,  and  telling  him  that 
he  shall  act  in  all  respects  agreeably  to  his  wishes;  in  another  letter 
he  tells  Price  he  shall  always  act  justly,  and  says  that  Price  has  got 
a  good  bargain  of  him  ;  that  he  might  afford  to  give  him  a  back;  but, 
says  he  shall  not  touch  one  without  Price's  consent.  After  this, 
in  February  1741,  Thomas  Baugh  filed  his  bill  in  chancery  to  set  aside 
the  articles  and  conveyance.  To  this,  the  defendant  put  in  his  answer, 
and  afterwards  the  proceedings  were  stopped,  and  Thomas  Baugh,  in 
October  1741,  executed  a  deed  reciting  the  proceedings  in  chancery,  and 
that  the  purchase  was  a  fair  one,  and  thereby  confirms  and  releases  the 
estate  to  Price.  Afterwards  Thomas  Baugh  and  Price,  with  the  assist- 
ance of  one  Doctor  Thomas,  (to  whom  Thomas  Baugh  applied)  set- 
tled all  accounts,  and  Thomas  Baugh  seemed  so  well  satisfied,  that  he 
thanked  Doctor  Thomas  for  his  kindness.  In  1743,  Thomas  Baugh's 
bill  in  chancery  was  dismissed,  and  in  1746,  he  died.  The  plaintiff, 
his  son,  soon  after  preferred  this  bill,  and  the  articles  and  both  deeds 
were  set  aside ;  and  the  barons  say,  in  page  323,  that  "  there  was  no 


Sept.  1832.]  OF  PENNSYLVANIA.  211 

[Hoge  v.  Hoge.J 

instance  where  the  original  contract  was  fraudulent,  that  any  subse- 
quent act  would  purge  it,  and  that  by  stopping  the  suit  in  chancery,  and 
the  release  thereupon  given,  the  fraud  was  double  hatched,  and  that  the 
transaction  was  iniquitous  from  beginning  to  end."  And,  I  think,  the 
same  observations  may  most  justly  be  made  in  the  case  before  the  court. 
I  shall  conclude  this  point  by  a  quotation  from  Hovenden's  Supplement 
to  Ves.  Jun.  vol.  2,  page  164,  165.  "  The  court  of  equity  have  very 
wisely  avoided  laying  down  any  general  rule  as  to  the  cases  in  which 
they  will  relieve  against  unfair  bargains,  lest  other  means  of  avoid- 
ing the  remedies  given  by  the  court  should  be  found  out.  Lawley  v. 
Hooper,  3  Jltk.  279.  It  is  proper  that  the  court  of  chancery  should 
leave  itself  unrestricted  on  this  point,  as  far  as  possible,  and  be  guided 
by  the  particular  circumstances  in  each  case.  Stillman  v.  Jlshdown,  2 
Jltk.  481.  For  the  possibility  will  always  exist,  that  human  ingenuity 
in  contriving  fraud,  will  go  beyond  any  cases  which  have  before  oc- 
curred. Webb  v.  Rock,  2  Scho.  fy  Lefr.  666." 

The  sixth  exception  is  not  supported  in  fact,  for  the  court  does  ex- 
plicitly answer  it  in  the  last  clause  of  the  third  paragraph  from  the 
end  of  the  charge,  and  also  in  its  answer  to  the  sixth  point  of  de- 
fendant ;  but  if  the  court  had  altogether  omitted  to  answer  it,  the 
defendant  could  not  have  been  injured  thereby,  as  the  law  had  be- 
fore been  laid  down  more  favourably  than  defendant  had  a  right  to 
claim. 

The  charge  of  the  court  on  the  seventh  point  was  at  least  as  favour- 
able to  defendant  as  he  was  entitled  to  have  it.  This  is  an  equitable 
proceeding,  and  relief  is  granted  on  such  terms  as  in  each  particular 
case  may  appear  just.  By  a  recurrence  to  the  cases  already  cited,  it 
will  appear  that  the  impossibility  of  placing  the  defendant  precisely 
in  his  original  condition  is  no  objection  to  the  interference  of  the 
court,  and  that  the  most  that  is  required  is  that  compensation  be 
made.  It  often  happens  that  valuable  improvements  are  made ;  but 
these  present  no  obstacle  to  the  rescinding  of  the  contract,  and  in 
such  cases,  the  court  merely  directs  payment  for  valuable  and  perma- 
nent improvements,  and  not  for  such  as  are  intended  to  please  the 
taste  or  fancy. 

Before  closing,  I  beg  leave  to  call  the  attention  of  the  court  to  one  -, 
circumstance,  which  I  omitted  to  notice  in  examining  the  first  ex- 
ception. It  is  this,  that  here  the  trust  is  actually  confessed  by  John 
Hoge,  the  trustee ;  and  the  only  question  is,  who  is  the  cestui  que  trust  ? 
Although  the  defendant  may  plead  the  statute,  yet,  if  instead  of  do- 
ing so,  he  confesses  the  facts  charged  in  the  bill,  the  court  will  inter- 
fere, notwithstanding  the  statute. 

It  is  known  to  every  man  who  ever  tried  a  good  cause,  that  the 
parties  often  take  many  things  as  true  without  proof.  Some  facts 
are  so  notorious  that  no  one  thinks  of  denying  them.  They  are 
mentioned  by  one  party,  and  not  contradicted  by  the  other  ;  and  par- 
ties and  court  and  jury  proceed  upon  the  assumption  of  the  truth. 
Such  was  the  case  here  ;  the  standing  circumstances  and  relations  of 


212  SUPREME  COURT  [Pittsburgh, 

[Hoge  v.  Hoge.] 

the  parties  were  all  known,  stated,  and  not  contradicted.  So  also 
the  relative  value  of  the  land  in  controversy,  and  the  land  in  Mercer 
received  by  plaintiff  below.  The  gross  inadequacy  is  noticed  by  the 
court  below  in  its  charge. 

I  make  these  remarks,  in  reply  to  the  observations  of  the  counsel 
of  the  plaintiff  in  error,  that  all  the  evidence  appears  on  the  paper 
books.  I  might  admit,  that  all  which  was  said  by  the  witnesses, 
who  were  examined,  is  embraced  in  the  paper  books,  which  I  think 
is  not  the  fact,  yet  a  great  deal  which  was  known  and  assumed  by 
both  parties  and  court,  is  not  there  found. 

In  reply  to  the  cases  cited  by  the  plaintiff  in  error,  to  show  that 
parol  evidence  cannot  be  admitted,  I  would  observe,  that  they  merely 
prove  that  you  cannot  add  or  contradict  what  is  written  ;  such  are  all 
his  cases.  The  case  of  Lee  v.  Henley,  I  Fern.  37,  in  which  he  says, 
it  was  held  "  that  no  averment  of  a  trust  of  real  estate  given  by  will 
can  be  received,"  contains  no  such  principle.  It  was  an  attempt  by 
Lee  to  have  inserted  in  a  conveyance  to  him,  a  tract  or  parcel  of 
land  which,  the  scrivener  said,  was  omitted  by  mistake.  It  was  not  a 
will,  but  a  voluntary  conveyance,  without  consideration,  to  a  nephew. 

We  do  not  ask  the  court  to  impugn  in  the  slightest  degree  the 
will  of  William  Hoge.  We  establish  it,  and  claim  under  it,  but  show 
a  matter  extrinsic  perfectly  consistent  with  it.  We  do  nothing  more 
than  this  court  has  lately  decided,  may  be  done  writh  a  solemn  decree 
of  a  court  of  record.  In  the  case  of  Berrington  v.  Clark,  decided  at 
the  last  term,  it  was  held  that  parol  evidence  might  be  received,  to 
show  that  lands  which  were  decreed  by  the  orphan's  court  to  the 
eldest  son  at  the  valuation,  were  held  by  him  under  that  decree,  in 
trust  for  all  the  heirs.  The  cases  in  New  York  are  not  applicable 
here ;  as  that  part  of  the  English  statute  relative  to  the  declaration  of 
trust,  which  has  been  omitted  in  ours,  has  been  adopted  in  New 
York.  What  is  said  by  Justice  Duncan  in  Withers' s  case,  14  Serg.  <$• 
Rawle  193,  must  be  taken  in  reference  to  the  case  under  considera- 
tion. It  was  not  a  question  between  a  trustee  and  a  cestui  que  trust ; 
but  an  attempt  by  one  brother  to  claim  another  brother's  share  of 
the  proceeds  of  the  real  estate  of  the  father,  sold  under  a  decree  of 
the  orphan's  court,  in  opposition  to  a  judgment  creditor  of  the  brother. 
There  was  not  even  an  obligation  of  a  sale,  but  merely  a  parol  agree- 
ment, that  he  should  be  reimbursed  moneys  advanced  when  the  land 
should  be  sold.  The  question  was,  whether  that  promise  should  be 
preferred  to  a  judgment.  The  case  of  Church  v.  Church,  4  Ycates 
280,  was  the  case  of  a  voluntary  deed  which,  of  course,  was  good 
against  all  but  creditors.  The  evidence  therefore  sought  to  be  given, 
that  defendant  had  acknowledged  he  had  given  nothing,  was  irrele- 
vant. It  was  a  contest  between  two  volunteers. 

The  counsel  for  the  plaintiff  in  error  says  "  that  no  disinterested 
man  who  was  acquainted  with  John  Hoge  in  his  life  time,  would 
dare  to  say  he  was  perjured."  Now,  the  whole  case  turned  upon 
that  fact,  and  was  expressly  put  upon  it  by  the  plaintiff  below.  It 


Sept.  1832.]  OF  PENNSYLVANIA.,  213 

[Hoge  v.  Hoge.] 

was  explicitly  admitted,  that  unless  the  jury  believed  that  John 
Hoge  was  perjured,  the  plaintiff  could  not  recover.  The  jury  have 
therefore  said,  that  lie  was  perjured,  and  they  were  disinterested  men. 

It  is  also  alleged,  that  although  John  Hoge  has  confessed  a  trust, 
yet  his  whole  confession  must  be  taken  together.  It  is  true,  we 
must  take  it  all  together,  but  we  are  not  bound  to  believe  all,  a  part 
may  be  true  and  all  the  rest  false. 

The  allegation  that  the  defendants  below  lost  important  wit- 
nesses by  death,  is  altogether  unfounded.  They  still  have  all  the 
benefit  of  John  Hoge's  testimony,  and  Mr  Campbell  knew  nothing, 
but  the  compromise  ;  and  it  is  known  that  witnesses  who  could  have 
put  the  whole  matter  to  rest  by  establishing  the  trust,  and  who  were 
intimately  acquainted  with  the  entire  arrangements  and  views  of 
the  testator  and  John  Hoge,  were  dead  before  John  Hoge  ever  dared 
to  equivocate  upon  the  subject. 

The  plaintiff  in  error  has  insisted  upon  many  things  which  are 
matters  of  consideration  for  a  jury,  but  with  which  a  court  of  error 
has  no  concern,  and  which,  therefore,  I  shall  not  notice,  but  pro- 
ceed to  the  last  exception.  It  must  be  remembered,  that  the  plain- 
tiff below  seeks  to  recover  on  the  ground  of  fraud  by  the  defendant, 
and  I  might  use  the  words  of  his  honour,  the  present  chief  justice, 
in  Riddle  v.  Murphey,  7  Serg.  <$•  Rawle  236  :  "  he  (the  defendant) 
could  not  claim  to  be  reimbursed  in  the  character  of  a  purchaser, 
for  if  the  sale  was  fraudulent,  it  was  a  nullity."  There  the  defen- 
dant held  the  legal  title,  yet  a  previous  tender  was  held  unnecessary. 
This  must  be  the  rule  in  every  case  where  the  defendant  is  affected 
with  such  fraud  as  will  make  him  a  trustee.  The  case  before  the  court 
is  not  like  the  case  refered  to  in  Snyder  v.  Wolfley,  8  Serg.  fy  Rawle 
332,  where  plaintiff's  title  is  incomplete  in  equity,  in  which  case  only 
the  rule  is  said  to  require  a  previous  tender.  It  more  nearly  resem- 
bles the  case  of  *Moody's  Lessee  v.  Vandyke,  4  Binn.  (31)  43.  The 
defendant's  equity,  if  he  has  any,  can  only  appear  on  the  trial.  It 
may  be  that  he  has  received  more  in  the  rents  and  profits  than  he  is 
entitled  to  claim ;  and  even  in  the  case  of  a  mortgage,  if  the  rents 
and  profits  received  by  the  lender,  up  to  the  time  of  trial,  are  equal  to 
the  money  lent  and  interest,  the  borrower  may  recover  in  eject- 
ment, without  bringing  the  amount  into  court.  Wharf  v.  Howell,  5 
Binn.  499.  The  court  is  referred  to  all  the  cases  before  cited,  where 
courts  have  interfered  for  fraud.  In  none  of  them  is  a  previous 
tender  required. 

In  this  case,  more  than  justice  is  rendered  to  the  defendant  by 
the  provision  made  in  the  verdict  of  the  jury.  He  is  doubly  paid : 
first  by  the  rents  and  profits,  and  then  by  the  verdict  of  the  jury. 
It  is  not  every  fraud  that  is  so  well  rewarded. 

The  opinion  of  the  Court  was  delivered  by 
GIBSON,  C.  J. — The  sum  of  the  evidence  on  the  part  of  the  plain- 
tiff, in  relation  to  the  first  of  the  two  essential  points  in  the  cause, 


214  SUPREME  COURT  [Pittsburgh, 

[Hoge  v.  Hoge.] 

is  contained  in  the  testimony  of  Mr  ^f  'Giffin,  and  the  deposition  of 
Mr  Morgan.  The  first  of  these  testified,  that  when  he  was  writing 
the  will,  the  testator  remarked,  that  "  as  regards  the  devise  to  his 
brother  John  Hoge,  it  was  a  trust,  and  that  he  had  no  other  way  of 
doing  it  :  he  must  leave  it  entirely  to  his  honour."  That  no  words 
were  used  to  designate  the  person  for  whom  the  trust  was  intended  ; 
but  that  John  Hoge,  the  devisee,  subsequently  told  the  witness, 
"  that  it  was  intended  for  young  William  Hoge ;"  and  that  he  had 
"  suggested"  to  the  testator  to  give  the  estate  to  him  (John)  as  a 
means  of  obviating  difficulties  in  securing  the  benefit  of  it  to  young 
William;  that  he  had  been  a  long  time  trying  to  get  him  to  do  it, 
but  that  he  had  not  had  sufficient  courage.  Mr  Morgan  deposed  to 
an  admission  of  John  Hoge,  that  the  devise  to  him  had  been  in  trust 
for  young  William;  "that  this  had  been  done  by  his  (John's)  ad- 
vice, or  at  his  instance  ;  and  that  he  had  wanted  his  brother  to  do 
more  for  him."  Beside  these,  Mr  Swearingen  testified  to  admissions 
of  "  an  understanding  between  him  and  his  brother,  that  if  young 
William  should  marry  and  have  a  male  heir,  it  would  be  in  his  power 
to  do  something  decent  for  him."  The  first  question  is,  whether  this 
evidence  were  competent  to  go  to  the  jury,  and,  if  not  disproved,  to 
found  a  trust  for  William,  the  plaintiff,  who  was  the  testator's  natu- 
ral son. 

Contemporary  declarations  of  a  testator  have  always  been,  not 
only  competent,  but  powerful  evidence  of  the  fact  declared  ;  and  the 
competency  of  declarations  by  the  devisee,  while  he  was  the  owner 
of  the  land,  will  not  be  disputed.  Indeed,  the  objection  was  rather 
to  the  fact  itself,  than  the  evidence  of  it ;  and  it  is  contended  that 
parol  evidence  of  a  trust  is  contrary  to  our  statute  of  wills,  which 
corresponds,  as  far  as  regards  the  point  in  dispute,  with  the  British 
statute  of  frauds.  Undoubtedly,  every  part  of  a  will  must  be  in  writ- 
ing ;  and  a  naked  parol  declaration  of  trust,  in  respect  of  land  devised, 
is  void.  The  trust  insisted  on  here,  however,  owes  its  validity,  not 
to  the  will  or  the  declaration  of  the  testator,  but  to  the  fraud  of  the 
devisee.  It  belongs  to  a  class  in  which  the  trust  arises  ex  maleficio, 
and  in  which  equity  turns  the  fraudulent  procurer  of  the  legal  title 
into  a  trustee,  to  get  at  him ;  and  there  is  nothing  in  reason  or  au- 
thority to  forbid  the  raising  of  such  a  trust,  from  the  surreptitious 
procurement  of  a  devise.  In  Dixonv.  Olmius,  I  Cox's  Cha.  Ca.  414, 
a  devisee  who  had  been  guilty  of  several  acts  of  fraud  and  violence, 
particularly  in  preventing  an  attorney,  sent  for  by  the  testator  to 
alter  his  will,  from  entering  the  bed  room,  was  promptly  declared  a 
trustee  for  the  party  intended  to  have  been  benefited  by  the  altera- 
tion. The  question  has  been,  as  to  the  circumstances  which  consti- 
tute such  a  fraud  as  will  be  made  the  foundation  of  a  decree.  A 
mere  refusal  to  perform  the  trust  is,  undoubtedly,  not  enough  ;  else 
the  statute  which  requires  a  will  of  land  to  be  in  writing,  would  be 
altogether  inoperative :  and  it  seems  to  be  requisite  that  there  should 
appear  to  have  been  an  agency,  active  or  passive,  on  Ihe  part  of  the 


Sept.  1832.]  OF  PENNSYLVANIA.  215 

[Hoge  v.  Hoge.] 

devisee  in  procuring  the  devise.     In  Whitton  v.  Russell,  1  Jltk.  488, 
it  was  thought,  by  high  authority,  that  even  a  promise  to  the  testa- 
tor to  perform  the  trust,  was  not  such  an  agency,  because,  as  it  was 
said,  the  fraud,  if  any,  consisted  not  in  the  procurement  of  the  will, 
but  in  the  subsequent  refusal  to  perform  it ;  and  that  every  breach 
of  promise  is  not  a  fraud.     But  it  was  also  thought  that  the  testator 
had  not,  in  fact,  been  drawn  in  to  make  the  will  by  the  promise ; 
and  on  no  other  ground  is  the  decision  to  be  reconciled  to  a  train  of 
authorities  by  which  it  is  conclusively  established,  that  if  he  has 
executed  his  will  on  the  faith  of  such  a  promise,  the  devisee  shall  be 
compelled  to  make  it  good.     In  Harris  v.  Harwell,  -Glib.  Eq.  Rep.  11, 
a  testator  who  had  devised  all  his  land  to  his  nephew,  desired  his 
heir  at  law  not  to  disturb  him  in  the  possession  of  certain  after  pur- 
chased lands  ;  and  it  was  so  decreed.     So  in  Chamberlaine  v.  Cham- 
berlaine,  2  Freem.  34,  a  testator  having  settled  lands  on  his  son  for 
life,  and  having  discourse  about  altering  his  will,  for  fear   there 
should  not  be  enough  beside  to  pay  certain  legacies  to  his  daugh- 
ters, was  told  by  the  son  that  he  would  pay  them,  if  the  assets  were 
deficient ;  but  afterwards,  pretending  that  the  lands  devised  to  him 
fell  short  of  these  legacies,  filed  his  bill  to  have  a  sum  alleged  to  be 
equal  to  the  deficiency,  raised  out  of  other  parts  of  the  estate  ;  and 
it  was  decreed  that,  having  suffered  his  father  to  die  in  peace  on  a 
promise  which  had  prevented  him  from  altering  his  will,  he  should 
pay  them  himself,  the  chancellor  further  remarking,  that  it  was  the 
constant  practice  of  the  court  to  make  decrees  on  such  promises. 
That  was  a  strong  case,  as  the  relief  claimed  would  probably  have 
put  the  son  in  no  better  condition  than  if  the  alteration  had  been 
made.     To  the  same  effect  is  Devenish  v.  Saines,  Prec.  in  Cha.  3,  in 
which  a  copyholder,  intending  to  devise  the  greater  part  of  his  copy- 
hold to  his  godson,  and  advising  with  the  copyholders  how  that 
might  best  be  done,  was  prevailed  upon  by  his  wife  to  nominate  her 
to  the  whole,  on  her  promising  to  give  the  godson  the  part  intended 
for  him  ;  and  it  was  decreed  against  the  wife,  notwithstanding  the 
statute  of  frauds.     And  in  Oldham  v.  Litchfield,  2  Fern.  506,  lands 
were  charged  with  an  annuity,  on  proof  that  the  testator  was  pre- 
vented from  charging  them  in  his  will,  by  a  promise  of  payment  by 
the  devisee.     There  are  many  other  decisions  to  the  same  point ; 
but  I  shall  cite  no  more  than  Thynn  v.  Thynn,  1  Fern.  296,  in  which 
a  son  induced  his  mother,  by  promising  to  be  a  trustee  to  her  use,  to 
prevail  on  her  husband  to  make  a  new  will,  and  appoint  him  execu- 
tor in  her  stead  ;  and  he  was  so  decreed.     I  have  cited  these  autho- 
rities with  a  particular  reference  to  their  circumstances,  to  show  that 
the  difference  taken  in  the  argument  between  real  and  personal 
estate,  is  without  foundation.     The  principle  of  the  relief  to  be 
granted,  is  very  satisfactorily  disclosed  by  Lord  Hardwicke,  in  Reech 
v.  Kennegal,  1  Ves.  122,  where  an  executor  and  residuary  legatee, 
who  had  promised  to  pay  a  legacy  not  in  the  will,  was  decreed  to 
discharge  it  out  of  the  assets ;  and  I  shall  close  my  remarks  on  this 


216  SUPREME  COURT  [Pittsburgh, 

[Hoge  T.  Hoge.] 

part  of  the  case  with  a  recapitulation  of  his  introductory  observations. 
The  rule  of  law  and  of  the  court,  said  the  chancellor,  strengthened 
by  the  statute  is,  that  all  the  legacies  must  be  written  in  the  will  ; 
and  that  all  the  arguments  against  breaking  in  on  wills  by  parol 
proof  were  well  founded.  But  notwithstanding  that,  the  court  had 
adhered  to  the  principle  that  whenever  a  case  is  infected  with  fraud, 
the  court  will  not  suffer  the  statute  to  protect  it  so  that  any  one  shall 
run  away  with  a  benefit  not  intended.  That  the  question  was,  whe- 
ther the  allegation  of  fraud  were  strengthened  by  the  promise  of  the 
defendant  ;  and  he  was  of  opinion  that  it  was.  That  it  had  been 
taken  that  the  fraud  must  be  on  him  who  might  have  remedy  by 
law  ;  but  the  court  considered  it  as  a  fraud  also  on  the  testator. 
To  apply  tljis  to  the  case  at  bar.  If  the  testator  was  induced  by  the 
promise  of  his  brother,  much  more  if  by  his  suggestion,  to  believe 
that  a  devise  to  him  was  the  most  prudent  plan  of  securing  the 
estate  to  his  illegitimate  son,  it  cannot  be  said  that  a  breach  of  con- 
fidence thus  reposed  in  him,  was  intended  to  be  protected  by  the  sta- 
tute ;  and  with  a  direction  to  this  effect,  the  point  was  put  to  the 


If,  then,  equity  would  have  decreed  the  trust  against  the  devisee, 
it  remains  to  be  seen  whether  the  plaintiff  has  precluded  himself 
from  insisting  on  it  against  the  defendant.  The  plaintiff  had 
brought  his  ejectment  against  a  tenant  of  the  devisee,  to  which  the 
latter  had  declined  to  become  a  party,  and  while  the  cause  was 
before  arbitrators,  had  executed  a  conveyance,  the  nature  of  which 
will  presently  be  stated,  to  the  present  defendant,  David  Hoge,  and 
his  son  William,  by  which  he  became  a  witness  and  testified,  it  is  to 
be  presumed,  to  the  facts  contained  in  his  deposition  here.  This  ad- 
vantage would  not  have  been  accorded  to  him  on  a  bill  in  equity, 
for  which  our  ejectment  is  a  substitute,  as  he  would  have  been  made 
a  party.  As  it  was,  however,  the  cause  was  compromised  under 
the  pressure  of  his  testimony,  the  plaintiff  conveying  his  equity  to 
the  defendant,  and  the  latter  executing  a  bond  with  condition  to  con- 
vey to  the  former  certain  lands  to  be  selected  by  him  from  a  larger 
body.  These  were  subsequently  selected,  and  a  part  of  them  sold 
by  the  plaintiff. 

By  the  conveyance  of  John,  the  devisee,  an  estate  in  tail  male 
was  limited  to  William,  the  defendant's  son,  with  power  to  his  father, 
whom  I  treat  as  the  party  really  interested,  to  take  the  profits  during 
his  life,  and  to  "sell  and  dispose  of"  the  estate,  if  he  should  deem  it 
necessary,  for  the  education  and  advancement  in  life  of  his  male 
children.  This  was  a  power  in  gross,  or  perhaps  simply  collateral, 
but  being  a  general  one,  it  gave  the/ee  simple  to  the  father,  just  as 
if  it  had  been  conveyed  to  him  by  a  deed  of  bargain  and  sale,  in- 
stead, as  this  was,  of  a  covenant  to  stand  seised  ;  consequently  the 
legal  estate  being  in  the  defendant,  the  parties  stood,  at  the  time  of 
the  compromise,  in  the  relation  of  cestuy  que  trust  and  trustee. 

The  compromise  of  a  doubtful  title  when  procured  without  such 


Sept.  1832.]  OF  PENNSYLVANIA.  217 

[Hoge  v.  Hoge.] 

deceit  as  would  vitiate  any  other  contract,  concludes  the  parties, 
though  ignorant  of  the  extent  of  their  rights ;  and  this  part  of  the 
case  depended,  therefore,  on  the  plaintiff's  ability  to  bring  home  to 
the  defendant  a  knowledge  of  the  falsehood  and  malpractice  imputed 
to  the  devisee.  The  direction  presupposed  the  existence  of  such 
practice ;  and  the  point  was  to  fix  the  degree  of  connivance  necessary 
to  make  the  defendant  participant  of  it.  The  jury  were  instructed 
that  if  the  release  were  "  obtained  through  the  misrepresentation  of 
John  Hoge,  and  in  consequence  of  the  influence  of  his  testimony  and 
the  persuasion  of  the  arbitrators,  it  is  not  binding,  if  David  Hoge 
KNEW  of  such  misrepresentations  and  availed  himself  unduly  of  such 
influence  and  misrepresentations."  Who  can  doubt  it  1  The  least 
advantage  taken  with  a  knowledge  that  it  flowed  from  a  corrupt 
source,  would  be  undue  and  fatal  to  the  contract.  Again :  "  Should 
you  find  that  the  release  was  procured  by  the  fraud,  falsehood,  impo- 
sition or  influence  of  John  Hoge,  it  is  void,  however  innocent  David 
Hoge  may  be,  if  the  agency  or  interference  of  John  Hoge  was  employed 
to  affect  the  arrangement.  But  if  David  Hoge  KNEW  of  no  such  mis- 
representation, nor  had  unfair  advantage  from  such  influence  and 
persuasions;  if  he  was  not  PRIVY  to  any  fraud,  falsehood  or  imposi- 
tion, even  supposing  John  Hoge  had  perjured  himself  in  the  testimony 
which  he  gave  before  the  arbitrators,  and  David  Hoge  had  no  know- 
ledge or  reason  to  believe  it  was  so,  the  agreement  of  compromise 
will  not  be  avoided."  It  must  be  admitted  that  in  attempting  to 
attain  to  greater  precision  by  repeating  the  same  proposition  in  differ- 
ent words,  the  judge  has  expressed  himself  not  without  a  shade  of 
obscurity ;  for  it  is  not  easy  to  determine,  without  a  view  of  the  con- 
text, what  was  meant  by  innocence  which  could  employ  the  fraud, 
falsehood  and  imposition  of  another.  But  in  putting  the  converse 
of  the  proposition,  it  was  clearly  explained,  that  by  innocence  was 
meant  that  comparative  degree  of  culpability  which  consists  in  abstain- 
ing from  an  interference  in  the  criminal  act,  but  without  rejecting  a 
benefit  procured  by  it ;  for  the  jury  were  plainly  instructed  that  if  the 
defendant  had  neither  knowledge  of  the  deceit  nor  reason  to  suspect 
the  devisee  of  playing  a  foul  game  for  his  benefit,  the  compromise 
which  was  the  consequence  of  it  would  be  a  binding  one.  Could  he 
ask  for  more1?  Standing  as  a  volunteer,  and  perhaps  the  instrument 
of  a  corrupt  purpose,  he  ought  to  appear  clearly  to  have  been  an 
unconscious  one.  He  was  bound  noi  merely  to  a  scrupulous  observ- 
ance of  good  faith,  but  even  to  vigilance  in  detecting  whatever  might 
give  him  an  unfair  advantage.  A  participation  in  the  benefits  of  the 
fraud,  having  knowledge  of  its  existence,  or  leaving  the  means  of 
knowledge  unimproved,  would  undoubtedly  implicate  him  as  a  con- 
federate, and  whether  as  an  active  or  a  passive  one,  would  be  imma- 
terial to  the  question.  In  this  view  the  point  was  submitted,  and  in 
language  which  could  not  on  the  whole  have  been  misunderstood  by 
the  jury. 
2c 


218  SUPREME  COURT  [Pittsburgh, 

[Hoge  v.  Hoge.] 

The  remaining  points  seem  to  have  been  immaterial.  In  regard 
to  this  species  of  trust,  the  illegitimacy  of  the  beneficiary  can  never 
be  a  circumstance  of  moment,  since  equity  would  undoubtedly  declare 
any  one  a  trustee  who  would  interpose  between  a  testator  and  his 
bounty  to  a  stranger.  Neither  could  the  alleged  delay  in  prosecuting, 
affect  the  right:  certainly  it  could  not,  as  regards  the  perpetrator  of 
the  fraud  or  one  standing  in  his  place.  Beside,  it  does  not  appear 
there  was  any  considerable  lapse  of  time  between  the  discovery  of  the 
deception  alleged  to  have  been  practised  in  the  compromise,  and  the 
institution  of  the  suit.  Finally,  the  direction  prayed  in  the  defend- 
ant's ninth  point,  was  actually  given  in  the  very  part  of  the  charge 
to  which  I  have  particularly  adverted ;  and  in  no  part  of  the  cause 
do  we  perceive  any  thing  which  requires  it  to  be  sent  to  another  jury. 

KENNEDY,  J,  took  no  part  in  the  judgment,  having  been  of  counsel 
with  the  plaintiff  in  error. 

Judgment  affirmed. 


Methodist  Church  against  Remington  et  al. 

A  trust  in  favour  of  an  unincorporated  religious  society  is  an  available  one,  if  the 
society  be  constituted  entirely  of  members  resident  within  the  state. 

The  statutes  of  mortmain  have  been  extended  to  this  state  only  so  far  as  they  prohi- 
bit dedications  of  property  to  superstitious  uses,  and  grants  to  corporations  without  a 
statutory  license. 

The  act  of  1730,  entitled  "  an  act  for  the  enabling  of  religions  societies  of  protest- 
ants  within  this  province  to  purchase  lands  for  burying  grounds,  churches,"  &c., 
being  an  affirmative  statute,  cannot  be  construed  to  prohibit  a  trust  which  derives  its 
support  from  the  common  law. 

It  is  the  equitable  powers  of  a  court  which  can  compel  the  execution  of  a  trust 
which  has  not  the  benefit  of  any  principle  of  legislative  recognition,  but  those  equita- 
table  powers  will  not  be  exercised  to  enforce  a  trust  which  is  against  the  policy  of  the 
state,  as  expressed  by  the  legislature  in  its  acts  in  parallel  cases. 

The  deed  in  this  case  to  individuals  "  for  the  use  of  the  members  of  the  Methodist 
Episcopal  Church  in  the  United  States  of  America,"  &c.,hcld  not  to  create  an  avail- 
able trust. 

APPEAL  from  the  circuit  court  of  Alleghany  county. 

This  was  an  action  of  ejectment  in  the  name  of  The  Methodist 
Church  of  the  city  of  Pittsburgh,  against  Stephen  Remington,  Charles 
Jlvery,  Thomas  Robinson,  Charles  Craig,  Patrick  Leonard,  John  Phil- 
lips, Edward  Moore,  Andrew  Jlpplegate,  John  Bissell,  Robert  White 
and  George  Brown,  for  parts  of  lots  Nos.  469  and  470,  in  the  city 
of  Pittsburgh,  and  also  for  an  acre  of  land  in  the  Northern  Liberties 
of  Pittsburgh.  The  cause  originated  in  the  late  divisions  in  the 
Methodist  Episcopal  church,  and  was  tried  before  Mr  Justice  Rogers, 
who  in  order  to  bring  the  questions  of  law  involved  in  it  directly  be- 
fore the  court  in  bank,  directed  a  general  verdict  for  the  plaintiff. 


Sept.  1832.]  OF  PENNSYLVANIA.  219 

[Methodist  Church  v.  Remington.] 

The  property  was  claimed  by  the  Methodist  Episcopal  church,  which 
sued  in  the  name  of  the  corporation,  as  a  trustee  to  its  use. 

The  original  title  was  not  the  subject  of  dispute ;  and  the  plaintiff 
gave  in  evidence  the  following  deed,  the  efficacy  of  which  gave  rise 
to  the  questions  of  law  which  were  argued  and  determined. 

This  indenture,  made  the  twenty-eighth  day  of  September,  in  the 
year  of  our  Lord  one  thousand  eight  hundred  and  twenty-four,  be- 
tween George  Miltenberger,  of  Pitt  township,  in  the  county  of  Alleg- 
hany,  and  commonwealth  of  Pennsylvania,  and  Rebecca  his  wife, 
of  the  one  part,  and  Charles  Jlvery,  Thomas  Cooper,  Nathaniel 
Holmes,  John  Phillips,  Charles  Craig,  Samuel  K.  Page  and  James 
Varner,  trustees  of  the  Methodist  Episcopal  church  of  Pittsburgh,  the 
other  part :  Whereas,  John  Woods  and  Theodosia  his  wife,  by  their 
deed,  bearing  date  the  third  day  of  June,  in  the  year  of  our  Lord  one 
thousand  eight  hundred  and  thirteen,  did  grant  and  convey  unto  the 
said  George  Miltenberger,  and  to  his  heirs  and  assigns,  four  certain 
contiguous  lots  or  pieces  of  ground,  situate  in  the  city  of  Pittsburgh, 
in  the  commonwealth  of  Pennsylvania,  marked  and  numbered  in  the 
general  plan  of  Pittsburgh,  Nos.  467,  468,  469  and  470,  bounded  by 
Smithfield  street,  by  Seventh  street,  by  Cherry  alley  and  by  Straw- 
berry alley,  as  by  the  said  recited  deed,  recorded  in  the  office  for  re- 
cording of  deeds  in  and  for  the  county  of  Alleghany,  in  book  T,  page 
62,  reference  being  thereunto  had,  will  more  fully  and  at  large  appear. 
And  whereas,  the  said  George  Miltenberger  and  Rebecca  his  wife,  by 
indenture  bearing  date  the  thirtieth  day  of  May,  in  the  year  of  our 
Lord  one  thousand  eight  hundred  and  seventeen,  granted  and  de- 
vised unto  John  Wrenshall,  Robert  M'Elhenny,  the  said  John  Phillips, 
Robert  M'Elhenny,  Jun.,  Edward  Hazleton,  the  said  Nathaniel  Holmes 
and  Thomas  Cooper,  (then  trustees  of  the  said  Methodist  Episcopal 
church  of  Pittsburgh)  three  certain  contiguous  lots  or  pieces  of 
ground,  situate  in  the  city  of  Pittsburgh  aforesaid,  marked  in  the 
plan  of  lots,  laid  out  by  said  George  Miltenberger,  Nos.  1,  2  and  3, 
(being  part  of  the  said  lots  marked  and  numbered  in  the  general  plan 
of  Pittsburgh,  Nos.  469  and  470)  bounded  and  described  as  follows, 
to  wit:  beginning  at  the  corner  of  Smithfield  street  and  Seventh 
street,  and  running  by  Smithfield  street  southwardly  sixty  feet, 
thence  to  lot  No.  4,  eastwardly  a  parallel  line  with  Seventh  street 
one  hundred  and  ten  feet  to  Miltenberger'' s  alley,  thence  by  the  said 
alley  northwardly  a  parallel  line  with  Smithfield  street  sixty  feet  to 
Seventh  street,  and  thence  by  Seventh  street  westwardly  one  hun- 
dred and  ten  feet  to  the  place  of  beginning;  together  with  the  free  use 
and  privilege  of  the  said  alley  called  "  Miltenberger's  alley,"  to  hold 
the  said  described  three  contiguous  lots  or  pieces  of  ground,  with  ap- 
purtenances, to  the  said  John  Wrenshall,  RobertM'Elhenny,  Edward 
Hazleton,  John  Phillips,  Robert  M'Elhenny,  Jun.,  Nathaniel  Holmes 
and  Thomas  Cooper,  and  to  their  successors  in  office,  in  trust,  that  they 
erect  and  build,  or  cause  to  be  erected  and  built  thereon,  a  house  or 
place  of  worship  for  the  use  of  the  members  of  the  Methodist  Episco- 


220  SUPREME  COURT  [Pittsburgh, 

[Methodist  Church  v.  Remington.] 

pal  Church  in  the  United  States  of  America,  according  to  the  rules 
and  discipline  which  from  time  to  time  may  be  agreed  upon  and 
adopted  by  the  ministers  and  preachers  of  the  said  church,  at  their 
general  conferences  in  the  United  States  of  America  ;  and  in  further 
trust  and  confidence,  that  they  should  at  all  times  for  ever  hereafter 
permit  such  ministers  and  preachers,  belonging  to  the  said  church, 
as  shall  from  time  to  time  be  duly  authorised  by  the  general  confer- 
ence of  the  ministers  and  preachers  of  the  said  Methodist  church,  or 
by  the  yearly  conferences  authorised  by  the  said  general  conference, 
to  preach  and  expound  God's  holy  word  therein,  and  in  further  trust 
and  confidence,  that  as  often  as  one  of  the  trustees  herein  before 
mentioned  shall  die  or  cease  to  be  a  member  or  members  of  the  said 
church,  according  to  the  rules  and  discipline  aforesaid,  then  and  in 
such  case,  it  shall  be  the  duty  of  the  stationed  minister  or  preacher, 
(authorised  as  aforesaid)  who  shall  have  the  pastoral  charge  of  the 
members  of  the  said  church,  to  call  a  meeting  of  the  remaining 
trustees  as  soon  as  conveniently  may  be,  and  when  so  met,  the  said 
minister  or  preacher  shall  proceed  to  nominate  one  or  more  persons 
to  fill  the  place  or  places  of  him  or  them,  whose  office  or  offices  has 
or  have  been  vacated  as  aforesaid,  provided  the  person  or  persons  so 
nominated  shall  have  been  one  year  a  member  or  members  of  the 
said  church  immediately  preceding  such  nomination  and-of  at  least 
twenty-one  years  of  age  ;  and  the  said  trustees,  so  assembled,  shall 
proceed  to  elect,  and  by  a  majority  of  votes  appoint  the  person  or 
persons  so  nominated  to  fill  such  vacancy  or  vacancies,  in  order  to 
keep  the  number  of  seven  trustees  for  ever  :  and  in  case  of  an  equal 
number  of  votes  for  and  against  the  said  nomination,  the  stationed 
minister  or  preacher  shall  have  the  casting  vote  ;  subject  to  the  pay- 
ment of  a  ground  rent  of  300  dollars  per  annum  for  ever,  payable  by 
the  said  John  Wrenshall,  Robert  JH'Elhenny,  Edward  Hazleton,  John 
Phillips,  Robert  JWElhenny,  Jun.,  Nathaniel  Holmes  and  Thomas 
Cooper,  and  their  successors,  to  the  said  George  Jlfiltenberger,  his 
heirs  and  assigns,  as  by  the  said  recited  indenture,  recorded  in  the 
office  aforesaid,  in  book  X,  pages  283,  284,  285  and  286,  reference 
thereunto  being  had,  will  more  fully  and  at  large  appear.  And 
whereas,  the  said  Charles  Jlvery,  Thomas  Cooper,  Nathaniel  Holmes, 
John  Phillips,  Charles  Craig,  Samuel  K.  Page  and  James  Varner,  are 
desirous  of  extinguishing  the  said  ground  rent,  and  of  holding  the 
said  described  premises  in  trust  as  aforesaid,  released  and  discharged 
therefrom  :  and  whereas,  the  said  trustees  have  paid  and  discharged 
the  said  ground  rent  arising  upon  the  said  demised  premises  in  full 
to  the  day  of  the  date  of  these  presents.  Now  this  indenture  wit- 
nesseth,  that  the  said  George  Miltenberger  and  Rebecca  his  wife,  for 
and  in  consideration  of  the  sum  of  3000  dollars,  lawful  money  of  the 
United  States,  to  them  in  hand  paid  by  the  said  Charles  Jlvery, 
Thomas  Cooper,  Nathaniel  Holmes,  John  Phillips,  Charles  Craig, 
Samuel  K.  Page  and  James  Varner,  at  or  before  the  ensealing  and 
delivery  hereof,  the  receipt  whereof  is  hereby  acknowledged,  have 


Sept.  1832.]  OF  PENNSYLVANIA.  221 

[Methodist  Church  v.  Remington.] 

granted,  bargained,  sold,  released  and  confirmed,  and  by  these  pre- 
sents do  grant,  bargain,  sell,  release  and  confirm,  unto  them  the 
said  Charles  Jlvery,  Thomas  Cooper,  Nathaniel  Holmes,  John  Phillips, 
Charles  Craig,  Samuel  K.  Page  and  James  Varner,  and  their  success- 
ors (trustees  in  trust  for  the  uses  and  purposes  herein  before  men- 
tioned and  declared),  as  well  the  said  ground  rent  of  300  dollars  per 
annum  for  ever  hereafter,  as  the  said  three  contiguous  lots  or  pieces  of 
ground,  situate  in  the  city  of  Pittsburgh  aforesaid,  and  marked  and 
numbered  in  the  said  plan  of  lots  laid  out  by  the  said  George  Milten- 
berger,  Nos.  1,  2,  and  3,  bounded  by  Smithfield  street,  by  lot  No.  4, 
Miltenberger's  alley,  and  by  Seventh  street,  containing  together  in 
breadth  from  Seventh  street  to  lot  No.  4,  sixty  feet,  and  in  length  or 
depth  from  Smithfield  street  to  Miltenberger's  alley,  one  hundred 
and  ten  feet  as  aforesaid,  together  with  all  and  singular  the  build- 
ings and  improvements,  rights,  liberties,  privileges  and  appurtenances 
whatsoever  thereunto  belonging  or  in  any  wise  appertaining,  and 
the  reversions  and  remainders,  rents,  issues  and  profits  thereof. 
Also,  all  the  estate,  right,  title,  interest,  property,  claim  and  demand 
whatsoever,  of  them  the  said  George  JVliltenberger  and  Rebecca  his 
wife,  in  law  or  equity  or  otherwise  howsoever,  as  well  of,  in  and  to 
the  said  contiguous  lots  or  pieces  of  ground,  Nos.  1,  2  and  3,  as  in 
and  to  the  said  ground  rent  of  300  dollars  per  annum.  To  have  and 
to  hold  the  said  described  three  contiguous  lots  or  pieces  of  ground, 
Nos.  1,  2  and  3  as  aforesaid,  hereditaments  and  premises  hereby 
granted  or  mentioned,  or  intended  so  to  be,  with  the  appurte- 
nances, unto  the  said  Charles  Jlvery,  Thomas  Cooper,  Nathaniel 
Holmes,  John  Phillips,  Charles  Craig,  Samuel  K.  Page  and  James 
Varner,  and  their  successors  in  office  for  ever,  released  and  dis- 
charged of  and  from  the  said  ground  rent,  of  300  dollars  per  annum, 
and  every  part  thereof,  in  trust  for  the  uses  and  purposes  herein 
before  mentioned  and  declared.  Provided,  nevertheless,  that  if 
the  said  trustees,  or  any  of  them,  or  their  successors,  have  ad- 
vanced or  shall  advance  any  sum  or  sums  of  money,  or  are  or 
shall  be  responsible  for  any  sum  or  sums  of  money,  on  account  of 
the  said  premises,  and  they,  the  said  trustees  or  their  successors, 
be  obliged  to  pay  the  said  sum  or  sums  of  money,  they  or  a  ma- 
jority of  them  shall  be  authorised  to  raise  the  said  sum  or  sums  of 
money  by  a  mortgage  on  the  said  premises,  or  by  selling  the  said 
premises  after  notice  given  to  the  pastor  or  preacher  who  has  the 
oversight  of  the  congregation  attending  divine  service  on  the  said 
premises,  if  the  money  due  be  not  paid  to  the  said  trustees  or  their 
successors  within  one  year  after  such  notice  given.  And  if  such  sale 
take  place,  the  said  trustees  or  their  successors,  after  paying  the  debt 
and  other  expenses  which  are  due  from  the  money  arising  from  such 
sale,  shall  deposit  the  remainder  of  the  money  produced  by  the  said 
sale  in  the  hands  of  the  steward  or  stewards  of  the  society  belonging 
to,  or  attending  divine  service  on  said  premises,  which  surplus  of  the 
produce  of  such  sale,  so  deposited  in  the  hands  of  the  said  steward  or 


222  SUPREME  COURT  [Pittsburgh, 

[Methodist  Church  v.  Remington.] 

stewards,  shall  be  at  the  disposal  of  the  next  annual  conference  au- 
thorised as  aforesaid,  which  said  annual  conference  shall  dispose  of 
the  said  money  according  to  the  best  of  their  judgment  for  the  use 
of  the  said  society.  And  the  said  George  MUtenberger,  for  himself 
and  his  heirs,  doth  covenant,  promise  and  agree  to  and  with  the  said 
Charles  Avery,  Thomas  Cooper,  Nathaniel  Holmes,  John  Phillips,  Charles 
Craig,  Samuel  K.  Page  and  James  Varner,  and  their  successors  chosen 
and  appointed  as  aforesaid,  against  him  the  said  George  MUtenberger 
and  his  heirs,  and  against  all  and  every  other  person  or  persons  law- 
fully claiming  or  to  claim  the  same  or  any  part  or  parcel  thereof,  or 
any  rent  or  arrears  of  rent,  shall  and  will  warrant  and  forever  defend 
by  these  presents.  In  witness  whereof,  the  said  George  JMiltenberger, 
and  Rebecca  his  wife,  have  hereunto  set  their  hands  and  seals  ihe 
day  and  year  first  above  written. 

GEORGE  MILTENBERGER,     [L.  s.] 
REBECCA  MILTENBERGER,   [L.  s.] 

Sealed  and  delivered  in  the  presence  of  M.  B.  Lowrie. 

Recorded  Sept.  28th,  1824,  book  F  2,  page  287,  &c. 

The  plaintiff  also  gave  in  evidence  the  act  of  assembly  of  the  5th 
March  1828,  incorporating  this  church  and  others.  (Pamph.  Laws, 
143.)  Trustees,  Patrick  Leonard,  Edward  Moore,  Thomas  Robinson, 
James  Taber,  Mam  Baker,  Stephen  Remington,  Andrew  Jlpplegate  and 
John  Bayard.  The  verdict  having  been  rendered  for  the  plaintiff,  a 
motion  was  made  by  the  defendants  for  a  new  trial,  and  the  follow- 
ing reasons  assigned: 

The  court  erred,  in  charging  the  jury  that  plaintiff  was  entitled  to 
recover — 

1.  Inasmuch  as  the  plaintiff  and  defendants  both  claim  to  be  the 
Methodist  Church  of  the  city  of  Pittsburgh;  the  defendants  claiming 
to  hold  the  property  in  dispute  as  trustees  of  said  corporation,  duly 
•elected  by  a  majority  of  the  members,  and  were  never  legally  re- 
moved from  their  said  office  of  trustees. 

2.  Because  the  proceedings  on  the  alleged  trial  of  those  trustees 
by  Mr  Lambdin  and  the  committee  appointed  by  him,  did  hot  and 
could  not  affect  or  impair  their  right  as  trustees  under  the  act  of  incor- 
poration. 

3.  That  defendants,  at  the  commencement  of  this  suit,  were  trus- 
tees of  said  corporation,  both  in  law  and  fact,  and  in  possession  of 
the  church,  and  that  in  either  case  the  plaintiff  cannot  recover. 

4.  That  the  right  of  defendants  to  the  possession  of  the  property 
cannot  be  inquired  into  in  this  form  of  action  ;  the  fact  of  their  being 
trustees  entitles  them  to  the  possession,  and  their  right  to  be  so  must 
be  tried  in  another  way. 

5.  That  the  legal  title  to  this  property  is  not  vested  in  the  plaintiff. 

6.  That  the  trusts  created  in  the  deed  from  MUtenberger  and  wife, 
and  O  'Hara  and  wife,  to  the  grantees  therein  named,  for  the  use  of 
the  members  of  the  Methodist  Episcopal  Church  of  the  United  States, 
and  in  behalf  of  such  preachers  of  said  church  as  shall  be  sent  from 
time  to  time  as  in  said  deeds  mentioned,  are  void.     The  Methodist 


Sept.  1832.]  OF  PENNSYLVANIA.  223 

[Methodist  Church  v.  Remington.] 

Episcopal  Church  in  the  United  States  is  not  incorporated  under  our 
laws,  and  can  neither  take  nor  hold  directly  or  indirectly  any  real 
estate.  A  grant  for  the  use  of  said  church  generally,  or  of  the  con- 
ference or  preachers  thereof,  cannot  be  carried  into  effect. 

7.  Membership  in  the  Methodist  Episcopal  church  is  not  a  requi- 
site qualification  for  membership  in  the  corporation  called  the  Metho- 
dist Church  of  the  city  of  Pittsburgh. 

The  motion  was  overruled,  and  the  defendants  appealed. 

The  cause  was  argued  in  this  court  by 

W.  W.  Fetterman  and  Forward,  for  appellants. 
Burke  and  Wilkins,  for  appellees. 

The  opinion  of  the  Court  was  delivered  by 

GIBSON,  C.  J. — Before  the  spirit  of  discord  and  separation,  which 
seems  at  present  to  possess  the  elements  of  all  things,  had  manifested 
itself  in  the  Methodist  society,  there  was  but  one  congregation  of  that 
denomination  in  Pittsburgh.  In  process  of  time  the  building,  in 
which  its  exercises  were  performed,  was  found  to  be  too  small  for  its 
accommodation ;  in  consequence  of  which  the  principal  subject  of 
this  action  was  purchased,  and  a  church  built  on  it  by  the  Methodist 
brethren  and  individuals  belonging  to  other  denominations.  The 
grant  was  in  the  form  prescribed  in  the  book  of  "  doctrines  and  dis- 
cipline" of  the  society  :  that  is  to  say,  the  conveyance  was  to  na- 
tural persons,  but  without  words  of  inheritance,  and  in  trust  to  erect 
a  house  of  worship  "  for  the  use  of  the  members  of  the  Methodist 
Episcopal  church  in  the  United  States  of  America,  according  to  the 
rules  and  discipline  which  from  time  may  be  agreed  upon  and 
adopted  by  the  ministers  and  preachers  of  the  said  church  at  their 
general  conference  in  the  United  States  of  America ;  and  in  further 
trust  and  confidence,  that  they  shall  at  all  times  hereafter  permit 
such  ministers  and  preachers  belonging  to  the  said  church  as  shall 
from  time  to  time  be  duly  authorized  by  the  general  conference  of 
the  ministers  and  preachers  of  the  said  Methodist  church,  or  by  the 
yearly  conferences  authorized  by  the  said  general  conference,  to 
preach  and  expound  God's  holy  word  therein."  To  this  was  added, 
a  grant  to  the  trustees  of  perpetual  succession,  with  power  to  ap- 
point their  successors  from  persons  to  be  nominated  by  the  minis- 
ter in  charge.  To  a  professional  mind  it  is  unnecessary  to  intimate 
that  this  formula  was  adopted  in  ignorance  of  the  common  law, 
which  suffers  not  the  fee  to  pass  by  deed  without  technical  words  of 
inheritance,  or  an  individual  to  clothe  an  association  of  natural  persons 
in  one  of  the  principal  attributes  of  a  corporation.  What  effect  the 
want  of  proper  words  of  conveyance  may  have  on  the  ultimate  desti- 
nation of  the  property,  it  is  not  at  present  for  us  to  say.  The  cause 
has  been  argued  as  if  the  fee  had  actually  passed,  and  our  business 
is  consequently  with  the  validity  of  the  trust.  But  it  will  not  be 
thought  an  officious  interference  with  the  concerns  of  the  society  to 


224  SUPREME  COURT  [Pittsburgh, 

[Methodist  Church  v.  Remington.] 

suggest  to  it,  or  the  parties  ultimately  entitled,  the  necessity  of  im- 
mediate measures  to  secure  the  property,  held  by  it  under  this  form 
of  assurance,  to  the  objects  originally  contemplated  by  the  donors. 

The  decision  in  Witman  v.  Lex,  17  Serg.  fy  Rawle  388,  is  full  to 
the  point,  that  a  trust  in  favour  of  an  unincorporated  religious  or 
charitable  society,  is  an  available  one  ;  and  were  the  Methodist  So- 
ciety constituted  entirely  of  members  resident  within  the  state,  would 
probably  rule  the  cause.     This  society,   however,   pervades   the 
United  States,  and,  till  lately,  was  connected,  it  is  believed,  with  the 
same  sect  in  the  British  piovinces  in  America.     It  then  becomes 
necessary  to  inquire,  how  far  a  trust  in  favour  of  what  is,  in  some 
respects,  a  foreign  society,  is  consistent  with  the  spirit  of  our  laws. 
The  act  of  1730,  entitled  "an  act  for  the  enabling  of  religious  so- 
cieties of  protestants,  within  this  province,  to  purchase  lands  for  bury- 
ing grounds,  churches,  &c."  provides  that,  "  it  shall  be  lawful  for 
any  religious  society  of  protestants  within  this  province,  to  purchase, 
take,  and  receive  by  gift,  grant  or  otherwise,  for  burying  grounds, 
erecting  churches,  houses  of  religious  worship,  schools  and  alms- 
houses,  for  any  estate  whatever  ;  and  to  hold  the  same  for  the  uses 
aforesaid  of  the  lord  of  the  fee,  by  the  accustomed  rents."     The 
words  "  religious  societies  within  this  province"  are  understood  to 
mean  congregations,  or  distinct  communities,  though,  perhaps,  mem- 
bers of  a  superior  body,  and  not  particular  sects  or  denominations, 
that  cannot  be  said  to  have  a  local  habitation  any  where  :  so  that, 
if  the  trust  before  us  is  not  to  be  sustained  but  on  the  enabling  pro- 
visions of  this  statute,  it  must  fail.     On  the  other  hand,  it  is  fair  to 
say  that,  though  it  derives  no  support  from  the  statute,  it  is  not  ne- 
cessarily prohibited  by  it ;  for  it  is  an  undoubted  rule  of  construction 
that  an  affirmative  statute  such  as  this  is,  does  not  take  away  the 
common  law,  and  there  certainly  was  no  absolute  prohibition  of  such 
a  trust  by  the  common  law,  or  any  previous  statute.     The  statutes 
of  mortmain  have  been  extended  to  this  state  only  so  far  as  they 
prohibit  dedications  of  property  to  superstitious  uses,  and  grants  to 
corporations  without  a  statutory  license.     The  present  is  certainly 
not  a  superstitious  use  ;  and,  indeed,  it  is  not  easy  to  see  how  there 
can  be  such  a  thing  here,  at  least  in  the  acceptation  of  the  word  by 
the  British  courts,  who  seem  to  have  extended  it  to  all  uses  which 
are  not  subordinate  to  the  interests  and  will  of  the  established  church. 
So  far  was  this  carried  in  the  Attorney-General  v.  Guise,  2  Fern.  266, 
that  the  charge  of  an  annual  sum  for  the  education  of  Scotchmen 
to  propagate  the  doctrines  of  the  church  of  England  in  Scotland, 
was  treated  as  superstitious,  because  presbyteries  were  settled  there 
by  act  of  parliament.     The  trust  before  us,  then,  not  being  within 
the  purview  of  any  of  the  statutes  of  mortmain,  as  extended  to  this 
state,  and  the  common  law  carrying  the  objects  of  the  conveyance 
no  further  into  effect  than  to  vest  the  title  in  the  trustees,  how  far 
are  we  to  lend  the  equitable  powers  of  the  court  to  the  execution  of 
a  trust  which  has  not  the  benefit  of  any  principle  of  legislative  re- 


Sept.  1832.]  OF  PENNSYLVANIA.  225 

[Methodist  Church  v.  Remington.] 

cognition  ?  Equitable  powers,  in  support  of  charitable  uses,  seem 
to  be  founded  rather  in  necessity  and  the  constitution  of  the  court, 
than  in  the  provisions  of  the  43  Eliz.,  which  is  not  in  force  here  ;  and 
granting  that  in  the  exercise  of  them  we  are  to  have  respect  to  the 
usages  and  necessities  of  our  own  people,  it  must  be  admitted,  on 
the  other  hand,  that  we  are  to  be  guided  by  the  policy  of  the  legis- 
lature, as  proclaimed  by  its  acts  in  parallel  cases.  Admitting,  then, 
that  this  trust  requires  not  the  aid  of  the  act  of  1730  to  remove  any 
positive  impediment  to  it,  yet  as  the  execution  of  it  requires  an  exer- 
tion of  the  equitable  powers  of  the  court,  it  must  likewise  be  admit- 
ted that  this  exertion  can  be  had  only  in  subordination  to  the  avowed 
policy  of  the  state,  which  is  too  clearly  expressed  in  that  statute  to 
be  misconceived.  Nor  is  it  expressed  in  that  statute  alone.  The 
power  of  self-incorporation  delegated  on  certain  conditions,  by  the 
act  of  1791,  to  associations  for  literary,  charitable  and  religious  pur- 
poses, is  expressly  restrained  to  "  citizens  of  this  commonwealth  ;" 
and  the  value  of  the  annual  profits  of  real  estate  to  be  held  even  by 
such  corporations,  is  limited  to  500  pounds.  The  statutes  of  mort- 
main, too,  which  deprive  corporations  of  capacity  to  hold,  would  be 
of  little  avail  if  foreign  unincorporated  societies  might  possess  all  the 
incidents  of  ownership  by  the  instrumentality  of  a  trust.  It  is  fair  to 
infer,  then,  from  all  these  statutes,  an  intent  to  interdict  to  such 
societies  the  use  of  privileges  that  were  but  sparingly  allowed  to  our 
own  citizens.  Though  no  sect  has  shown  a  disposition  to  acquire 
real  estate  as  an  engine  of  power,  or  even  for  purposes  of  revenue 
beyond  the  exigences  of  its  current  expenditure,  the  legislature  has 
entertained  an  evident  jealousy  of  clerical  monopoly,  by  limiting  the 
right  of  tenure  to  just  so  much  ground  as  may  be  adequate  to  the  pur- 
poses of  sepulture  and  the  erection  of  buildings  dedicated  to  religious 
or  charitable  uses.  In  the  act  of  1730,  it  is  further  provided,  that 
"  nothing  in  this  act  contained  shall  be  taken  or  construed  to  enable 
any  of  the  said  religious  societies,  or  any  person  or  persons  whatsoever 
in  trust  for  them  or  to  their  use,  to  purchase,  take  or  receive  any  lands 
or  tenements,  by  gift,  grant  or  otherwise,  for  or  towards  the  maintenance 
or  support  of  the  said  churches,  houses  of  worship,  schools  or  alms- 
houses,  or  the  people  belonging  to  the  same,  or  for  any  other  use  or  pur- 
pose, save  for  the  uses  in  this  act  before  mentioned."  Now,  though 
glebes  have  been  held  in  trust  as  appurtenant  to  the  churches  of  unin- 
corporated congregations  whose  property  in  the  soil  has  been  the  sub- 
ject of  judicial  recognition,  as  in  Caufmanv.  The  Congregation  of  Cedar 
Spring,  6  Binn.  59,  yet  the  trust  depended  not  on  the  enabling  provi- 
sions of  the  statute,  but  on  the  custom  of  the  province  as  stated  in  Wit- 
man  v.  Lex;  and  certainly  it  does  not  follow,  that  the  members  of  a  reli- 
gious society,  a  vast  majority  of  whom  are  strangers  to  the  custom, 
should  be  let  into  the  benefit  of  it  without  a  legislative  license.  It 
seems  to  me,  however, — I  speak  for  myself — that  a  statute  to  author- 
ize such  trusts  would  commend  itself  not  less  to  the  judgment  of  the 
lawgiver  than  to  the  feelings  of  the  philanthropist.  Notwithstand- 


226  SUPREME  COURT  [Pittsburgh 

[Methodist  Church  v.  Remington.] 

ing  the  disregard  of  popular  rights  apparent  in  the  constitution  of  the 
Methodist  Episcopal  Church ;  the  sacrifices  of  its  ministers  to  the  pro- 
motion of  piety,  by  a  life  of  poverty  and  self-denial,  and  their  uncom- 
mon success  in  restoring  to  society  the  lost  and  the  worthless,  whose 
case  is  ordinarily  reached  by  the  ministration  of  no  other  clergy, 
ought,  it  seems  to  me,  to  allay  the  fear  of  clerical  dominion,  and  ren- 
der it  worthy  of  consideration,  whether  their  efforts  in  the  cause  of 
virtue  and  good  government  do  not  deserve  to  be  encouraged  by  any 
reasonable  concession  of  the  civil  authority. 

The  preceding  remarks  dispose  of  the  question  of  the  title  so  far  as 
the  Methodist  Society  is  concerned ;  and  as  the  conclusion  at  which 
we  have  arrived  is  adverse  to  a  right  in  it  to  recover  in  any  shape, 
the  decision  might  be  rested  here.  There  are,  however,  other  mat- 
ters in  the  cause  which  seem  to  call  for  consideration.  The  legal 
estate,  at  least  for  the  lives  of  the  original  grantees,  is  vested  in  the 
corporation  by  force  of  their  conveyance  to  it ;  but  in  whom  is  the 
beneficial  interest  1  The  original  trust,  though  void,  was  not  a  su- 
perstitious one ;  nor  if  it  were,  would  the  property,  as  in  England, 
revert  to  the  state  for  the  purpose  of  being  appropriated  in  eodem 
genere,  as  no  court  here  possesses  the  specific  powers  necessary  to 
give  effect  to  the  principle  of  cy  pres,  even  were  the  principle  itself 
not  too  grossly  revolting  to  the  public  sense  of  justice  to  be  tolerated 
in  a  country  where  there  is  no  ecclesiastical  establishment.  The 
declared  trust  then  being  simply  a  nullity,  we  have  the  ordinary  case 
of  a  purchase  in  the  name  of  third  persons,  and  consequently  a  trust 
resulting  by  implication  of  law  in  favour  of  those  who  paid  the  pur- 
chase money.  Whether  their  interests  were  surrendered  to  the  cor- 
poration, by  becoming  parties  to  the  charter  subsequently  procured, 
it  is  unnecessary  to  say.  If  such  of  the  contributors  as  adhere  to  the 
communion  of  the  Methodist  Episcopal  Church,  should  still  be 
deemed  to  have  an  interest  in  the  property  in  proportion  to  the  part 
of  its  price  paid  by  them,  it  is  obvious,  that  to  enforce  it  by  the  law, 
would  produce  an  endless  train  of  petty  legislation,  vexatious  to  all 
parties,  and  certainly  not  very  profitable  to  the  cause  of  religion. 
But  they  undoubtedly  are  entitled  to  compensation  in  point  of  con- 
science ;  and  not  only  justice,  but  every  consideration  of  policy  points 
to  a  compromise  by  which  they  may  receive  what  will  no  doubt  be 
promptly  tendered,  a  fair  remuneration. 

The  title  to  the  burying  ground,  which,  though  included  in  the 
action,  has  not  been  insisted  on,  depends  on  circumstances  and  prin- 
ciples essentially  different.  The  ground  was  purchased  by  indivi- 
duals belonging  to  the  congregation  as  a  cemetery  for  the  families  of 
themselves,  and  others  who  should  be  found  willing  to  pay  for  com- 
partments in  it ;  and  the  title  was  vested  in  trustees,  but  without  the 
semblance  of  a  trust  for  the  Methodist  Society,  which  therefore  has 
no  colour  of  right  to  it.  It  is  observable,  however,  as  a  circumstance 
to  be  regretted,  that  the  plan  of  vesting  the  title  was,  as  in  the  case 
of  the  church,  a  conveyance  to  trustees  without  words  of  inheritance, 


Sept.  1832.]  OF  PENNSYLVANIA.  227 

[Methodist  Church  v.  Remington.] 

and  an  attempted  substitution  of  the  principle  of  succession  for  the 
common  law  principle  of  descent. 

In  conclusion,  it  is  but  necessary  to  remark,  that  even  were  the 
Methodist  Society  beneficially  entitled,  it  could  not  recover  in  an 
action  at  law,  its  remedy  being  a  petition  to  have  the  trustee  for  the 
time  being  removed  for  a  misapplication  of  the  property  to  uses  foreign 
to  the  purposes  of  the  trust ;  and  least  of  all,  could  it  recover  in  the 
name  of  the  corporation  by  an  action  against  the  corporation's  officers, 
who  are  ex  qfficio  entitled  to  the  management,  and  consequently  to 
the  possession  of  its  property.  In  every  aspect,  then,  the  cause  is 
with  the  defendants ;  and  I  have  only  to  add  the  expression  of  a  de- 
sire that  this  unhappy  controversy  may  presently  cease,  at  least 
within  the  precincts  of  this  state,  where  the  title  is  so  plainly  settled 
by  municipal  regulations,  as  to  leave  nothing  to  the  usual  chances  of 
litigation.  What  the  event  may  be  in  other  states,  it  would  be  pre- 
sumptuous in  me  to  predict ;  but  it  certainly  would  conduce  no  less 
to  the  temporal  than  to  the  spiritual  comfort  of  the  parties,  were  they 
to  part  in  peace  having  settled  their  respective  claims  to  the  property 
on  the  basis  of  mutual  and  liberal  concession. 

Kennedy,  Justice,  took  no  part,  having  been  of  counsel  in  the  cause. 

New  trial  awarded. 


CASES 


THE   SUPREME   COURT 


PENNSYLVANIA. 


LANCASTER,  NOVEMBER  ADJOURNED  TERM  1832. 


Nutz  against  Reutter. 

A  wife  cannot  be  joined  with  her  husband  as  a  defendant  in  an  action  founded  upon 
a  contract  or  promise  express  or  implied,  unless  she  made  the  contract  or  promise, 
or  did  the  act,  from  which  it  was  to  be  implied,  before  coverture,  when  she  must  be 
joined  with  her  husband. 

In  an  action  ex  contractu  against  several,  it  must  appear  by  the  pleadings  that  the 
contract  was  joint,  and  that  fact  must  be  proved ;  but  with  regard  to  the  promise  of  a 
husband  and  wife,  it  must  in  law  be  considered  and  treated  as  the  promise  of  the  hus- 
band alone. 

An  action  against  a  husband  and  wife,  npon  a  contract  of  the  wife  dum  sola,  abates 
as  to  the  husband  at  his  death. 

The  appointment  of  a  guardian,  and  an  act  done  by  him  in  pursuance  of  such  ap- 
pointment, is  such  evidence  of  general  guardianship  as  will  defeat  an  action  ex  con- 
tractu by  the  ward  against  the  guardian,  until  his  account  is  first  settled  by  the  orphan's 
court. 

ERROR  to  the  common  pleas  of  Dauphin  county. 

The  suit  was  commenced  by  Eliza  C.  Reutter,  the  defendant  in 
error  in  that  court,  to  October  term  1821,  against  George  K.  Nutz 
and  Mary  his  wife,  late  Mary  Reutter,  administratrix  of  Michael 
Reutter,  deceased,  to  recover  a  distributary  share  of  the  personal  estate 
of  the  deceased,  which  she  claimed  as  one  of  his  children  under  the 
intestate  laws  of  this  state.  Pending  this  suit,  Mary  the  wife  of 
JVnfz  and  administratrix  of  Michael  Reutter,  on  the  27th  of- July  1832, 
died.  On  the  21st  of  July  1824,  a  declaration  in  assumpsit  was  filed 


230  SUPREME  COURT  [Lancaster, 

[Nutz  v.  Reutter.] 

in  the  cause,  setting  forth  that  the  plaintiff  below,  who  is  the  defend- 
ant in  error  here,  upon  the  death  of  her  father  Michael  Reutter,  be- 
came entitled  to  a  distributive  share  of  the  goods  and  chattels  of  the 
said  Michael,  which  remained  after  the  payment  of  his  debts,  and 
which  amounted  to  45,000  dollars.  That  the  said  Mary  Reutter  was 
duly  appointed  administratrix  of  the  said  goods,  and  that  as  such 
they  all  came  into  her  hands.  That  the  intestate  at  the  time  of  his 
death  left  a  widow,  to  wit  the  said  Mary,  and  three  children,  the 
plaintiff  below,  one  other  daughter  named  Charlotte,  and  a  son  named 
Daniel,  all  of  whom  were  still  living;  and  that  the  plaintiff  was  en- 
titled to  one-third  of  the  said  goods,  equal  in  value  to  10,000  dollars, 
after  deducting  from  the  whole  amount  one  equal  third  part  as  the 
widow's  portion.  That  the  said  Mary,  in  consideration  of  the  pre- 
mises, after  the  death  of  the  said  Michael,  and  before  her  intermar- 
riage with  the  said  George  K.  Nutz,  (which  is  therein  also  averred) 
"  on  the  6th  day  of  October  1807,  at  the  county  aforesaid,  upon  her- 
self did  assume,  and  to  the  said  Eliza  then  and  there  did  promise, 
that  she  said  Mary,  the  said  10,000  dollars,  to  the  said  Eliza,  when 
thereto  afterwards  she  should  be  required,  well  and  faithfully  would 

E ay  and  content;"  and  then  concluding  in  the  usual  form  with  a 
reach  of  this  promise,  and  laying  the  damages  at  12,000  dollars. 
On  the  same  day  that  this  declaration  was  filed,  the  cause  was  refer- 
red under  the  compulsory  arbitration  law  to  referees,  who,  on  the  4th 
of  September  following,  reported  against  George  K.  Nutz,  one  of  the 
defendants  below,  4857  dollars  and  42  cents.  From  this  award  the 
defendant,  on  the  18th  of  the  same  month,  entered  his  appeal ;  and 
on  the  30th  day  of  October  following,  died.  On  the  1st  of  March 
1826,  the  court  below  granted  leave  to  the  plaintiff's  attorney  to  file 
a  new  declaration ;  and  on  the  28th  of  May  1827,  at  the  request  of 
the  plaintiff's  attorney,  a  rule  was  granted  by  the  court  below  on 
Daniel  N.  L.  Reutter,  the  plaintiff  in  error  here,  to  plead  on  six  weeks 
notice,  or  judgment.  On  the  5th  of  July  following,  Mr  Elder,  as 
attorney  for  the  plaintiff  in  error,  appeared  in  the  court  below,  and 
after  reserving  all  exceptions  to  the  irregularity  of  the  course  taken 
against  his  client,  as  per  paper  filed,  put  in  the  plea  of  non  assumpsit. 
The  new  declaration  filed  by  leave  of  the  court,  after  reiterating 
the  first  to  the  word  "  nevertheless,"  at  the  commencement  of  the 
conclusion,  proceeds  in  the  following  words  :  "  and  whereas,  the 
said  George  after  his  espousal  with  the  said  Mary,  to  wit  on  the  1st 
day  of  May  1808,  at  the  county  aforesaid,  in  consideration  of  the 
promise  and  assumption  of  the  said  Mary,  and  of  the  goods  and  chat- 
tels aforesaid  having  come  into  his  hands  and  possession,  and  appro- 
priated to  his  own  use,  upon  himself  did  assume,  and  to  the  said 
Eliza  then  and  there  did  promise,  that  he,  the  said  George,  the  said 
10,000  dollars,  to  the  said  Eliza,  when  thereto  afterwards  he  should 
be  required,  well  and  truly  would  pay  and  content.  Nevertheless, 
the  said  Mary  while  she  was  sole,  after  the  death  of  the  said  Michael, 
and  before  her  intermarriage  with  the  said  George,  and  the  said 


Nov.  1832.]  OF  PENNSYLVANIA.  231 

[Nutz  v.  Rentier.] 

George  since  his  espousal  with  the  said  Mary,  although  often  required, 
their  aforesaid  promise  and  assumption  nothing  regarding,  the  said 
10,000  dollars  or  any  part  thereof  to  the  said  Eliza  have  not  paid, 
but  the  same  to  pay  to  her,  the  said  Mary,  before  her  intermarriage 
with  the  said  George,  and  the  said  George  since  his  espousals  with 
the  said  Mary,  have  they  each  of  them  altogether  refused,  and  still 
do  refuse,  to  the  damage  of  the  said  Eliza,  5000  dollars." 

At  the  trial  the  plaintiff  in  error  added  the  plea  of  the  statute  of 
limitations ;  a  plea,  also,  that  George  K.  Nutz,  his  testator,  was,  on 
the  4th  of  May  1813,  duly  appointed  by  the  orphan's  court  of  Dau- 
phin county,  guardian  of  the  person  and  estate  of  the  defendant  in 
error,  who  was  a  minor,  under  the  age  of  fourteen  years  at  that  time, 
and  that  all  the  money  and  goods  mentioned  in  the  declaration  as 
having  come  to  his  hands,  if  any  such  ever  did  come,  came  into  his 
hands  and  possession  as  guardian  of  the  person  and  estate  of  the  said 
Eliza ;  and  that  no  account  of  his  guardianship  has  ever  been  stated 
and  settled  in  the  said  orphan's  court.  And  again,  as  a  plea  against 
the  further  maintenance  of  this  action,  alleged,  that  since  the  com- 
mencement and  during  the  pendency  of  it,  the  said  Mary  Reutter, 
administratrix  as  aforesaid  of  the  said  Michael  Reutter,  on  the  27th 
day  of  July  1822,  at  the  county  aforesaid,  died.  The  replication  to 
the  plea  of  guardianship  denied  the  appointment  of  Nutz  as  guardian ; 
or  that  if  he  was  so  appointed,  it  was  only  until  the  defendant  in  error 
should  attain  the  age  of  fourteen  years ;  and,  in  the  last  place,  that 
the  appointment  was  procured  by  fraud. 

The  replication  to  the  plea  of  the  death  of  the  administratrix,  Mary 
Reutter,  pending  the  suit,  admitted  her  death,  as  alleged,  but  claimed 
to  maintain  the  suit  notwithstanding,  because  Nutz  had  obtained 
possession  of  all  the  goods  immediately  after  his  intermarriage  with 
the  said  Mary,  and  had  retained  them  until  after  her  death  in  his 
hands,  as  was  therein  alleged,  in  trust  and  for  the  use  of  the  said 
Eliza. 

Upon  the  trial  of  the  cause,  the  plaintiff  in  error  gave  in  evidence, 
among  other  things,  a  certificate  from  the  clerk  of  the  orphan's  court 
of  Dauphin  county,  showing  that,  on  the  4th  of  May  1813,  George 
K.  Nutz,  his  testator,  had  been  appointed,  upon  the  application  of 
himself  and  wife,  guardian  of  the  person  and  estate  of  the  defendant 
in  error  ;  and  it  was  admitted  that,  as  such,  he  had  attended  to  and 
prosecuted  an  action  of  ejectment  for  the  recovery  of  a  tract  of  land, 
part  of  the  estate  of  the  defendant  in  error,  lying  in  Northumberland 
county ;  but  alleged,  that  his  appointment  of  guardian  was  designed 
for  the  special  purpose  of  prosecuting  that  suit,  and  that  he  never 
accepted  or  took  upon  himself  the  guardianship  of  the  defendant  here 
for  any  other  purpose. 

After  the  evidence  was  gone  through  with  on  both  sides,  the  court 
below  charged  the  jury,  that  this  action  might  be  sustained  against 
the  executor  of  George  K.  Nutz;  and  that  the  death  of  his  wife,  pend- 


232  SUPREME  COURT  [Lancaster, 

[Nutz  v.  Routter.] 

ing  the  suit,  did  not  abate  and  put  an  end  to  it ;  although  it  was 
commenced  against  him  and  her  jointly. 

In  respect  to  the  appointment  of  George  K.  Nutz  as  guardian,  the 
court  below  further  charged  the  jury  in  the  following  words.  "  By 
the  record  of  the  orphan's  court  it  appears  that  George  K.  Nutz  was 
appointed  guardian  of  the  plaintiff.  But  it  is  denied  that  he  took 
upon  himself  the  guardianship  of  plaintiff  beyond  bringing  suit  in  that 
character  to  recover  a  tract  of  land  for  plaintiff  and  her  brother  and 
sister,  in  Northumberland  county,  for  which  purpose  alone  it  is  said 
he  was  appointed  guardian.  I  leave  to  the  jury  to  decide,  whether 
Nutz  took  upon  himself  the  guardianship  of  plaintiff's  estate.  The 
mere  appointment  of  George  K.  Nutz  as  guardian,  by  the  orphan's 
court,  unless  he  took  upon  himself  the  guardianship  of  plaintiff,  in 
pursuance  of  that  appointment,  would  not  support  defendant's  plea ; 
or  the  appointment  of  Nutz  as  guardian  for  the  purpose  of  instituting  the 
ejectment  in  Northumberland  county,  and  his  instituting  that  ejectment 
without  taking  upon  himself  the  guardianship  of  plaintiff's  other  property, 
would  not  support  defendanfs  plea.  If  George  K.  Nutz  took  upon  him- 
self the  guardianship  of  plaintiff's  estate,  this  suit  cannot  be  support- 
ed. Defendant  in  that  case  must  be  cited  to  settle  his  account  of  his 
guardianship  in  the  orphan's  court." 

On  the  trial  of  the  cause,  a  number  of  bills  of  exception  were 
taken  to  the  opinion  of  the  court  upon  points  of  evidence  and  other 
matters  which  occurred  ;  after  which  the  court  were  requested  by  the 
counsel  for  the  plaintiff  in  error  to  instruct  the  jury  on  various  ques- 
tions of  law.  All  these  things  have  been  assigned  for  error,  but  have 
been  passed  by,  with  the  exception  of  the  opinion  of  the  court  below 
as  to  the  maintenance  of  this  action  against  the  plaintiff  in  error,  and 
the  charge  of  the  court  on  the  point  of  his  guardianship. 

The  questions  were  argued  by 

M'Cormick  and  Wideman,  for  plaintiff  in  error. 
G.  Fisher,  for  defendant  in  error. 

The  opinion  of  the  Court  was  delivered  by 

KENNEDY,  J. — In  regard  to  the  first  question,  I  consider  it  a 
well  settled  principle,  that  a  wife  can  not  be  joined  with  her  husband 
as  a  defendant  in  an  action  founded  upon  a  contract  or  promise 
either  express  or  implied,  except  where  she  has  made  the  contract 
or  promise,  or  done  the  act  from  which  it  is  to  be  implied,  before 
coverture ;  and  that  in  every  such  case  the  wife  must  be  joined  in 
the  suit  with  the  husband.  Robinson  v.  Hardy,  1  Ves.  281,  440  ; 
Drue  v.  Thorn,  Alleyn  72  ;  J\litchinson  v.  Hewson,  7  Term  Rep.  348. 
Neither  at  law  nor  in  equity  will  the  courts  take  cognizance  of  dis- 
tinct and  separate  claims,  or  liabilities  of  different  persons  in  the 
same  suit.  1  Cldtty's  PL  8,  31.  And  therefore,  in  an  action  ex  con- 
tractu  against  several,  it  must  appear,  on  the  face  of  the  pleadings, 


JVot).  1832.]  OF  PENNSYLVANIA.  233 

[Nutz  v.  Reutter.] 

that  their  contract  was  joint,  and  that  fact  must  also  be  proved 
at  the  trial ;  and  if  too  many  persons  be  made  defendants,  and  the 
objection  appear  on  the  pleadings,  either  of  the  defendants  may 
demur,  move  in  arrest  of  judgment,  or  support  a  writ  of  error ; 
and  if  the  objection  do  not  appear  upon  the  pleadings,  the  plaintiff 
may  be  nonsuited,  or  otherwise  the  court  ought  to  direct  the  jury 
peremptorily  to  return  a  verdict  against  him  upon  the  trial,  if  he 
fail  in  proving  a  joint  contract.    Chitty,  PL  31.     And  upon  this 
principle  it  has  been  holden,  that  an  action  can  not  be  maintained 
against  husband  and  wife  upon  a  promise  alleged  to  have  been  made 
by  both  during  coverture ;  for  as  to  the  wife  the  promise  is  void,  and 
therefore  in  law  must  be  considered  the  promise  of  her  husband  alone, 
which  is  insufficient  to  support  the  action  against  the  husband  and 
wife  jointly.     Risley  v.  Stafford,  Palmer  312.     The  propriety  of  join- 
ing  the  husband  as  a  defendant  with  the  wife  in  actions  ex  contractu, 
when  the  cause  of  action  originated  with  the  wife  dum  sola,  is  obvi- 
ous ;  because,  as  the  law  makes  him  liable  during  the  coverture  for  the 
fulfilment  of  all  her  engagements  made  anterior  thereto,  it  would  be 
repugnant  to  the  first  principles  of  natural  justice  that  he  should  be 
condemned,  or  have  a  judgment  rendered  against  him  without  an 
opportunity  afforded  of  being  first  heard.     But  still  in  such  suit  the 
contract,  or  foundation  of  it,  must  appear  to  have  originated  with  the 
wife  alone  while  sole.     And  as  the  husband  is  only  liable  for  such 
cause  of  action  during  the  coverture,  it  follows  necessarily  that  the 
moment  that  that  tie  is  severed,  either  by  the  death  of  the  wife  or 
by  the  death  of  the  husband,  all  liability  of  the  husband,  or  of  his 
estate,  in  that  action  ceases;  if  the  wife,  however,  should  happen  to 
be  the  one  that  survives,  the  action  survives  also  against  her,  and 
may  be  prosecuted  to  judgment  and  execution.     See  1  Bac.  Jlbr.  tit. 
Baron  fy  Feme,  P.  page  485  ;  3  Mod.  186  ;  2  Com.  Dig.  tit.  Baron 
<$•  Feme,  2  C.  page  113  (Kytfs  Ed.)-,  \  Rolle  351,  I.  40.     If  the 
action  then  was  properly  brought  by  Eliza  Reutter  against  Nutz  and 
his  wife,  as  no  doubt  it  was,  judging  from  the  cause  of  action  set  forth 
in  the  first  declaration,  if  he,  Nutz,  had  not  been  previously  appointed 
her  guardian,  the  death  of  the  wife  abated  the  suit,  and  put  an  end 
to  all  liability  on  the  part  of  Nutz  in  that  suit.     If,  however,  the 
plaintiff  below  had  any  good  cause  of  action  against  Nutz,  the  hus- 
band, alone,  she  could  not  set  it  up  on  that  action  either  before  or 
after  the  death  of  the  wife,  beause  no  other  than  a  cause  of  action 
which  originated  against  the  wife  before  marriage  could  be  presented 
and  made  the  foundation  of  a  recovery  in  it.     As  well  might  it  be 
contended  that  a  plaintiff  who  has  brought  a  suit  founded  upon  a 
contract  against  a  defendent  who  is  unmarried  at  the  time  of  com- 
mencing the  action,  but  marries  a  woman  while  the  same  is  pend- 
ing, against  whom  the  plaintiff  has  also  a  cause  of  action  arising  out 
of  a  contract  made  with  her  dum  sola,  shall  be  permitted,  by  the 
court  in  which  the  suit  is  pending,  to  add  a  count  to  his  declaration 
embracing  the  cause  of  action  against  the  wife.  Such  an  amendment, 

2E 


234  SUPREME  COURT  [Lancaster, 

[Nut-/,  v.  lleuttcr.] 

I  presume,  never  yet  entered  into  the  head  of  any  lawyer  who  had 
one,  so  as  to  attempt  having  it  made.  Chief  Baron  Comyn  lays  it 
down,  that  "  if  an  action  be  brought  by  or  against  husband  and  wife, 
where  it  ought  to  be  by  or  against  husband  alone,  it  will  be  error  ;  or 
it  may  be  moved  in  arrest  of  judgment.  2  Comyri's  Dig.  tit.  Baron 
4-  Feme,  Y.  page  111,  Kyd's  Ed. 

In  conformity  to  this  principle,  it  has  been  held  that  two  actions, 
brought  by  the  same  plaintiff',  one  against  the  husband  alone  for 
words  spoken  by  him,  and  the  other  against  the  husband  and  wife 
for  words  spoken  by  the  wife,  cannot  be  consolidated.  Swithin  v. 
Vincent,  2  Wils.  227.  The  court  in  that  case  delivered  its  opinion  in 
the  following  words  :  "  this  cannot  be  done,  for  it  would  be  error  to 
join  the  wife  in  a  declaration  for  words  spoken  by  the  husband  only, 
and  the  declaration  would  be  ill,  either  upon  a  demurrer  or  in  arrest 
of  judgment." 

The  first  declaration  filed  in  the  cause  under  our  consideration  did 
not  profess  to  make  George  K.  Nutz  liable,  otherwise  than  by  his 
having  become  the  husband  of  Mary  Rentier,  against  whom  the 
plaintiff  below  alleged  she  had  her  cause  of  action ;  but  it  was  no 
doubt  the  intention  of  the  attorney  of  the  plaintiff  below,  by  his  filing 
the  new  declaration,  to  spread  on  the  record  a  cause  of  action  that 
would  charge  Nutz  individually,  and  in  his  own  right;  although  I 
have  my  doubts  whether  he  has  done  so ;  indeed,  I  am  rather  inclined 
to  think  that  he  has  not  stated  a  sufficient  consideration  in  it  to  make 
Nutz  liable  individually,  and  in  his  own  right.  However,  upon  this 
I  do  not  wish  to  be  understood  as  giving  any  opinion  by  which  I  shall 
feel  myself  bound  in  the  least  degree  hereafter.  But  admitting  that 
it  is  such  as  it  was  designed  to  be,  then  it  would  be  incompatible 
with  the  first,  which  must  still  be  considered  as  a  part  at  least  of  the 
declaration  in  the  cause,  for  it  was  not  asked  of  the  court  to  be  with- 
drawn, and  certainly  never  was  withdrawn.  Hence  the  declaration 
may  never  be  considered  as  consisting  of  two  counts.  In  forming  an 
opinion  of  the  correctness  of  the  proceeding  in  this  case,  we  consider 
and  judge  of  it  in  the  same  way  as  if  the  original  parties  to  it  were 
all  still  in  full  life,  because  every  cause  of  action  must  refer  to  the 
original  commencement  of  the  suit,  and  if  it  did  not  exist  then,  or 
were  not  good,  or  could  not  then  be  made  a  good  ground  for  recovery 
on  the  part  of  the  plaintiff  it  cannot  become  or  be  made  so  by  any 
subsequent  occurrence  in  that  action.  Now  let  us  apply  the  ordi- 
nary test  in  such  cases,  in  order  to  determine  whether  two  counts  can 
be  joined  in  the  same  declaration  in  an  action  against  a  husband  and 
wife,  one  charging  him  and  the  wife  both  in  right  of  the  wife,  and 
the  other  charging*  him  in  his  own  individual  capacity  and  right. 
Chief  Justice  Wilmot  says,  the  true  test  to  try  whether  two  counts  can 
be  joined  in  the  same  declaration,  is  to  consider  and  see  whether 
there  be  the  same  judgment  in  both,  and  wherever  there  is  the  same 
judgment  in  both,  he  thinks  they  may  well  be  joined.  In  this  opinion 
the  other  judges  concurred.  Dkkson  v.  Clifton,  2  Wils.  321  ;  1  Term 


Nov.  1832.]  OF  PENNSYLVANIA.  235 

[Nutz  v.  Reutter.] 

Rep.  276.  It  is  evident  that  here  the  judgment  in  case  of  a  recovery 
could  not  be  the  same  on  both  counts,  for  on  the  first  it  would  have 
to  be  a  judgment  against  both  the  husband  and  wife,  but  on  the 
second  a  judgment  against  the  husband  alone.  As  well  might  it  be 
attempted  in  an  action  of  debt  against  A  and  B  jointly,  to  charge 
them  in  the  first  count  of  the  declaration  with  a  certain  sum  of  money 
due  from  them  to  the  plaintiff  upon  their  joint  obligation,  and  in  a 
second  count  to  charge  A  alone  with  the  like  sum  due  upon  his  seve- 
ral obligation.  Yet  such  a  thing  has  never  been  heard  of. 

We  also  think  that  the  court  below  erred  in  their  charge  to  the 
jury  in  regard  to  the  appointment  of  George  K.  Nutz  guardian  of  the 
person  and  estate  of  the  defendant  in  error,  and  as  to  the  effect  of 
what  he  did  under  that  appointment,  whether  it  amounted  to  an 
acceptance  of  the  guardianship  generally  or  not.  The  charge  of  the 
court  upon  this  matter  was  calculated,  to  say  the  least  of  it,  to  mis- 
lead the  jury,  by  leaving  them  at  liberty  to  consider  the  appointment 
of  Nutz,  a  guardian  of  the  defendant  below,  for  a  special  purpose 
only,  merely  to  bring  and  prosecute  an  action  to  recover  a  tract  of 
land  in  Northumberland  county,  in  which  she  had  an  interest.  The 
words  of  the  court  are,  "  the  appointment  of  Nutz  as  guardian,  for 
the  purpose  of  instituting  the  ejectment  in  Northumberland  county, 
and  his  instituting  that  ejectment  without  taking  upon  himself  the 
guardianship  of  plaintiff's  other  property,  would  not  support  defend- 
ant's plea."  Now  there  was  nothing  in  the  evidence  to  warrant 
these  remarks  to  the  jury.  There  was  no  evidence  of  JWz's  having 
been  appointed  guardian  but  once.  That  appointment  was  general 
in  its  terms,  and  could  not  be  restricted.  It  made  him  guardian  of 
her  person  and  all  her  estate,  and  if  he  did  any  act  as  guardian  under 
it,  it  was  an  acceptance  of  the  appointment  generally,  and  he  thereby 
became  responsible  as  such.  There  being  then  no  other  evidence 
given  of  his  appointment  as  guardian  than  the  certificate  from  the 
clerk  of  the  orphan's  court,  which  showed  that  his  appointment  was 
general ;  and  it  being  admitted  that  after  that  he  had  commenced 
and  prosecuted  an  action  of  ejectment  as  guardian  of  the  defendant 
in  error :  his  authority  to  do  so  could  only  be  derived  from  this  ap- 
pointment, and  was  conclusive  evidence  of  his  having  accepted  it, 
and  the  court  below  ought  to  have  so  instructed  the  jury.  And  as  he 
therefore  was  entitled  to  receive,  and  must  be  considered  as  having 
received  all  the  moneys,  goods  and  chattels  mentioned  in  the  declara- 
tion in  this  action,  to  which  the  plaintiff  below  lays  claim,  as  her 
guardian,  and  never  having  settled  his  guardianship  account  with 
the  orphan's  court^  this  action  could  not  have  been  supported  against 
him  alone,  or  his  personal  representative,  even  had  it  been  so  origin- 
ally brought.  This  has  been  settled  and  ruled  by  this  court  in  the 
case  of  Bowman  v.  Herr,  I  Penns.  Rep.  282. 
The  judgment  of  the  court  below  is  reversed. 


236  SUPREME  COURT  [Lancaster, 


Withers  against  Atkinson. 

A  witness  having  testified  to  what  was  sworn  to  before  arbitrators  by  a  person  who 
was  dead,  and  having  said  that  his  memory  had  been  refreshed  since  that  time  by 
hearing  the  notes  of  the  deceased  witness's  testimony  read,  it  was  held  to  be  a  pro- 
per question  to  ask,  whether  he  had  not  heard  the  counsel  who  took  the  notes,  say 
on  oath,  that  they  were  not  the  notes  of  the  evidence  taken  before  the  arbitrators, 
but  made  in  his  own  office,  of  what  he  expected  to  prove. 

In  an  action  on  an  agreement  for  the  sale  and  purchase  of  land,  to  recover  the 
purchase  money,  the  plaintiff  can  not  recover,  unless  he  has  previously  to  the  com- 
mencement of  his  action  tendered  a  sufficient  conveyance  of  the  land. 

A  purchaser  of  land,  who  has  given  his  bond  for  the  purchase  money,  may  retain 
for  incumbrances,  or  for  defect  of  title,  although  he  has  no  covenant  against  incum- 
brances ;  but  if  the  incumbrance  be  removed  after  suit  brought,  the  vendor  may  re- 
cover, but  must  pay  costs  up  to  the  time  when  the  incumbrance  was  removed,  and 
notice  of  it  to  the  purchaser. 

If  a  deed  be  altered  after  delivery,  the  alteration  destroys  the  deed  as  to  the  party 
who  altered  it,  but  "does  not  destroy  the  estate.  If  it  contain  covenants,  the  party 
loses  all  remedy  on  them,  but  the  title  is  not  divested.  It  is  the  instrument  which 
is  rendered  void,  not  the  estate. 

ERROR  to  the  district  court  of  Lancaster  county. 

This  was  an  action  of  debt  on  a  bond,  dated  1st  April  1820, 
brought  in  the  name  of  John  Fullmer,  assignee  of  George  Withers, 
against  Ezekiel  Atkinson,  and  the  defence  was  a  failure  of  considera- 
tion. The  defendant  called  Isaac  Bolton,  as  a  witness  to  prove  what 
William  and  Mahlon  Atkinson,  who  were  then  both  dead,  swore  be- 
fore arbitrators  on  a  former  trial  of  the  cause ;  who  said,  that  he  could 
remember  the  whole  substance  of  the  testimony  then  given  by  those 
witnesses,  which  was,  that  they  were  subscribing  witnesses  to  the 
bond ;  that  the  parties  said  it  was  for  the  land  sold  by  Withers  to 
Atkinson  ;  that  at  the  time  the  bond  was  given  Withers  declared  that 
there  was  no  judgment  against  the  land.  Upon  cross  examination 
the  witness  said,  that  his  memory  was  refreshed  on  the  subject  of 
what  the  Atkinsons  had  sworn  before  the  arbitrators,  by  having  fre- 
quently since  seen  the  notes  of  their  evidence,  as  taken  at  the  time 
by  George  W.  Jacobs,  Esq.  the  counsel  of  the  defendant.  The  plain- 
tiff then  proposed  to  ask  the  witness,  whether  he  had  not  heard 
George  W.  Jacobs,  Esq.  admit  in  court,  when  examined  as  a  witness, 
that  the  only  notes  he  had  were  memoranda  of  what  he  expected  to 
prove,  and  which  were  here  made  in  his  own  office.  The  defendant 
having  objected  to  this  evidence  on  the  ground  that  Mr  Jacobs  was 
alive  and  competent  to  testify,  it  was  rejected  by  the  court,  which 
formed  the  subject  of  the  first  bill  of  exceptions. 

The  defendant  having  given  in  evidence  the  bond,  dated  1st  April 
1 820,  and  the  agreement  between  the  parties  for  the  purchase  and 
sale  of  the  land,  dated  13lh  August  1818  ;  with  four  receipts  of  dif- 
ferent dates  for  payments  on  account  of  the  purchase  money,  and 


Nov.  1832.]  OF  PENNSYLVANIA.  237 

[Withers  v.  Atkinson.] 

proof  that  Atkinson  had  gone  into  possession  of  the  land  in  November 
1818  ;  offered  in  evidence  a  deed  from  Withers  to  Atkinson,  purport- 
ing to  bear  date  the  1st  of  November  1818,  and  proof  by  the  justice 
who  drew  the  same  and  took  the  acknowledgement  of  the  grantors 
and  their  wives,  that  it  was  drawn,  executed  and  acknowledged  in 
the  year  1819,  and  that  "nineteen"  had  been  erased  and  eighteen 
written  upon  the  erasure,  since  the  deed  was  executed  and  acknow- 
ledged. This  evidence  was  also  objected  to,  and  the  objection  was 
overruled  and  the  evidence  given.  It  was  also  proved  that  the  wives 
of  John  Withers  and  George  Withers,  both  of  whom  were  grantors, 
were  yet  living. 

The  defendant  then  gave  in  evidence  fifteen  judgments  against 
John  and  George  ^Withers,  all  entered  previously  to  1819,  but  all  of 
which  were  satisfied  before  the  trial  of  the-  cause,  and  some  of  them 
after  its  institution.  It  was  also  in  proof  that  Atkinson  had  sold  and 
conveyed  a  part  of  the  land  in  1822.  These  facts  gave  rise  to  seve- 
ral points  which  were  made  by  the  plaintiff  and  defendant,  upon 
which  they  respectively  asked  the  court  to  charge  the  jury. 

The  plaintiff  requested  the  court  to  charge  the  jury  : 

1.  That  the  date  of  the  deed  and  its  acknowledgement  given  by  the 
Withers  to  Atkinson  is  not  material ;  it  takes  its  effect  from  delivery.    If 
a  deed  of  conveyance  has  a  false  or  impossible  date,  or  no  date  at  all, 
it  is  nevertheless  a  good  deed.     If,  therefore,  the  date  of  this  deed 
was  altered  before  delivery,  it  is  still  a  perfectly  good  deed  to  Atkin- 
son against  the  grantors ;  and  if  the  deed  has  been  altered  by  Atkin- 
son, or  with  his  consent,  since  he  received  it,  or  before  he  received  it, 
he  has  no  right  to  complain. 

2.  That  the  deed  for  the  land  which  defendant  has  in  possession, 
admitted  by  defendant  to  have  been  received  by  him  on  the  1st  of 
April  1820,  and  kept,  and  the  land  held  under  it  by  him,  (except  the 
part  he  has  sold)  ever  since,  is  the  fulfilment  and  completion  of  the 
agreement  of  the  13th  of  August  1818,  as  to  the  conveyance  of  the 
land ;  and  that  the  covenants  in  the  article  of  agreement  are  carried 
into  effect  and  merged  in  the  deed,  and  cannot  now  operate  to  con- 
trol or  interpret  it. 

3.  The  defendant  having  been  in  possession  and  enjoyment  of  the 
land  from  1818  up  to  this  time,  having  received  a  deed  for  the  land, 
having  given  the  bond  in  suit  for  the  balance  of  the  purchase  money 
on  the  1st  of  April  1820,  and  having  recorded  that  deed  on  the  12th 
of  December  1821,  and  having  sold  a  part  of  this  land  by  deed,  on 
the  15th  of  April  1822,  cannot  now  object. to  the  payment  of  the 
bond ;  because,  he  alleges,  there  were  levies,  by  awards  or  judg- 
ments, at  the  time  the  deed  was  given,  which  remained  undischarged 
or  not  removed  at  the  time  suit  was  brought,  if  they  have  been  re- 
moved since. 

4.  That  no  liens  or  incumbrances  now  remain  on  this  land. 

5.  That  the  transactions  between  men  are  taken  to  be  fair,  and 
done  according  to  their  mutual  understanding,  unless  shown  to  be 


238  SUPREME  COURT  [Lancaster, 

[Withers  v.  Atkinson.] 

otherwise ;  that  fraud  is  not  to  be  presumed  or  believed  by  a  jury, 
without  satisfactory  proof. 

6.  That  a  defendant  asking  for  equity,  as  a  defence  against  a  legal 
claim,  must  do  equity ;  that  it  is  inequitable  in  a  defendant  to  ask  to 
be  relieved  from  the  payment  of  his  bond  for  purchase  money  of  land 
which  he  had  held  and  enjoyed  under  his  deed  for  ten  years  and 
a  half,  up  to  this  time,  without  being  disturbed,  or  even  asking  for 
further  assurance,  or  other  indemnity  under  the  covenants  in  his  deed, 
merely  on  account  of  incumbrances  of  records  which  once  existed 
against  the  lands  of  the  grantors,  but  which  are  now  and  have  long 
since  been  removed. 

7.  That  the  defendant,  by  his  sale  by  deed  recorded  on  the  15th 
of  April  1822,  of  fifty-three  acres  of  this  land,  to  his  son,  has  shown 
by  a  conclusive  act  that  he  did  not  intend  to  rescind  the  contract, 
and  has  put  it  out  of  his  power  to  replace  the  grantors  in  the  situa- 
tion in  which  they  were  before  the  sale. 

To  which  the  court  answered  : 

1.  A  deed  takes  effect  from  the  delivery.     The  alteration  of  the 
date  of  this  deed,  and  acknowledgement  after  the  execution  of  them, 
if  done  by  the  grantor,  or  at  his  instance,  is  a  falsification  of  the  deed 
in  a  material  part.     If  a  deed  of  conveyance  has  a  false  date,  or  no 
date,  it  is,  notwithstanding,  good.     If  the  date  was  altered  by  Atkin- 
son, or  with  his  knowledge  and  consent,  he  cannot  complain. 

2.  Answered  in  the  affirmative. 

3.  Answered  in  the  affirmative. 

4.  If  the  jury  believe  that  the  judgments  Nos.  2  and  13  were  re- 
leased, there  are  now  no  incumbrances. 

5.  Answered  in  the  affirmative. 

6.  Answered  in  the  affirmative. 

7.  This  is  for  the  jury.     It  is  evidence ;  and,  whether  conclusive 
or  otherwise,  is  for  them  to  decide. 

The  defendant  requested  the  court  to  charge  the  jury: 

1.  That  as  it  is  in  express  proof,  that  the  bond  upon  which  this 
suit  is  brought,  was  given  for  part  of  the  purchase  money  of  a  tract 
of  land,  covenanted  to  be  conveyed  by  George  Withers  fy  Co.  to  the 
defendant,  clear  of  all  incumbrances,  except  only  the  claim  of  the 
commonwealth,  it  is  incumbent  on  the  plaintiff  before  he  can  recover, 
to  show  that  when  he  brought  his  suit  he  was  in  a  situation  to  com- 
ply with  the  contract  on  his  part,  and  convey  the  land  to  the  defend- 
ant clear  of  all  incumbrance?,  agreeably  to  the  terms  of  the  articles 
of  agreement  executed  on  the  13th  August  1818. 

2.  That  a  vendor  is  bound  to  acquaint  a  purchaser  with  the  incum- 
brances existing  against  the  estate  intended  to  be  sold ;  and  if  he 
neglect  to  do  so,  he  is  guilty  of  a  direct  fraud,  which  vitiates  and 
renders  void  the  contract. 

3.  That  where  there  has  been  direct  fraud,  or  the  adverse  party 
has  acted  mala  fide,  the  contract  is  void,  and  cannot  be  confirmed  by 
any  subsequent  declarations  or  acts  by  which  its  fairness  is  acknow- 


JMw.  1832.]  OF  PENNSYLVANIA.  239 

[Withers  v.  Atkinson.] 

ledged.  Therefore,  if  the  jury  believe  that  George  Withers,  the  plain- 
tiff, did  not,  at  the  time  of  obtaining  the  bond  upon  which  this  suit 
is  brought,  acquaint  the  defendant  with  the  incumbrances  existing 
against  the  land  sold,  and  induced  him  to  execute  the  bond  and  ac- 
cept the  deed,  by  falsely  and  fraudulently  representing  that  the  land 
was  cleared  of  incumbrances;  that  there  was  not  a  judgment  against 
him  under  the  canopy  of  heaven;  and  that  the  deed  was  good:  that 
this,  ipso  facto,  avoids  the  bond,  and  that  the  subsequent  recording 
of  the  deed  can  have  no  effect  in  reviving  or  confirming  it. 

4.  That  it  is  a  principle  of  equity,  that  the  parties  to  an  agree- 
ment must  be  acquainted  with  the  extent  of  their  rights,  and  the 
nature  of  the  information  they  can  call  for  respecting  them,  or 
they  will  not  be  bound.     And,  therefore,  if  the  jury  believe,  that 
on  the  1st  day  of  April  1820,  the  day  on  which  the  defendant  exe- 
cuted this  bond,  he  was  not  acquainted  with  the  existence  of  the 
incumbrances  against  the  estate  he  had  bought,  and  was  lulled  into 
security,  and  prevented  from  making  inquiry,  by  the  false  and  frau- 
dulent representations  of  the  plaintiff  George  Withers,  he  is  not  bound 
by  his  contract,  and  the  bond  is  void. 

5.  That  it  is  a  salutary  rule,  founded  on  morality  and  good  policy, 
and  which  recommends  itself  to  the  good  sense  of  every  one,  that 
no  man  ought  to  be  heard  in  a  court  of  justice,  who  seeks  to  enforce 
a  contract  founded  in,  or  arising  out  of,  moral  or  political  turpitude, 
and  if,  therefore,  the  jury  believe  that  the  plaintiff,   George  Withers, 
obtained  from  the  defendant  the  bond  in  suit,  by  the  assertion  of  wil- 
ful and  deliberate  falsehoods,  and  by  palming  upon  him  an  erased 
and  altered  deed,  their  verdict  should  be  in  favour  of  the  defendant. 

6.  That  an  interlineation,  if  made  after  the  execution  of  a  deed, 
will  avoid  it,  though  in  an  immaterial  part ;  the  parties  having  no 
right  to  make  the  most  trifling  alteration  after  it  has  been  acknow- 
ledged before  a  magistrate,  appointed  by  law  to  take  and  certify  the 
acknowledgement,  in  order  that  the  deed  may  be  recorded;  and  as  it 
is  in  express  proof,  that  after  the  acknowledgement  by  the  grantors 
and  their  wives,  before  James  Black,  Esq.  the  erasures  and  interlinea- 
tions in  the  deed,  and  the  acknowledgement  spoken  of  by  him  were 
made  by  George  Withers  the  plaintiff,  or  through  his  instrumentality, 
that  this  avoids  the  deed  in  toto,  and  as  the  bond  was  given  for  land 
conveyed  by  the  deed,  the  consideration  of  the  bond  has  failed,  and 
the  money  cannot  be  recovered. 

7.  That  the  rights  of  femes  covert  can  be  divested  only  in  the  man- 
ner pointed  out  by  the  laws  of  the  land,  and  as  it  has  been  proved 
by  James  Black,  Esq.,  the  justice  before  whom  the  deed  given  in 
evidence  by  the  defendant  was  acknowledged,  Elizabeth  and  Mary 
H.  Withers,  the  wives  of  two  of  the  grantors,  are  still  in  full  life ; 
that  subsequently  to  its  acknowledgement,  the  deed  was  altered  and 
erased  by  George  Withers,  or  some  one  for  him :  this  vitiates  the  con- 
veyance as  to  them.     And  that  as  Ezekiel  Atkinson  holds  the  land 
subject  to  their  rights,  no  indefeasible  title  clear  of  all  incumbrances 


240  SUPREME  COURT  [Lancaster, 

[Withers  v.  Atkinson.] 

has  been  given  to  him,  agreeably  to  the  articles  of  agreement  of  13th 
of  August  1818;  and  that  consequently  the  consideration  of  the 
bond  has  failed  and  the  plaintiff  cannot  recover. 

8.  That  as  it  has  been  fully  proved,  that^subsequently  to  the  exe- 
cution and.  acknowledgement  of  the  deed  given  in  evidence  by  the 
defendant,  it  was  materially  altered  and  erased  by  the  plaintiff 
George  Withers  or  his  agent ;  this  avoids  the  deed  as  to  the  other 
grantors ;  and,  consequently,  that  Ezekiel  Atkinson,  in  case  of  eviction, 
could  have  no  redress  against  them  upon  the  covenant  of  warranty 
contained  in  the  deed. 

9.  That  as  the  interlineations  and  erasures  made  in  the  deed  by 
George  Withers  or  his  agent,  subsequently  to  its  execution  and  ac- 
knowledgement before  James  Black,  Esq.,  avoid  it  as  to  the  other 
grantors;  their  legal  estate  has  never  been  divested,  but  remains  sub- 
ject to  all  liens  and  incumbrances  existing  against  them. 

10.  That  fraud  vitiates  every  transaction;  and  if  the  jury  believe 
that  the  defendant  was  induced,  on  the  1st  of  April  1820,  to  give 
his  bond  by  the  false  and  fraudulent  representations  of  the  plaintiff, 
respecting  the  non  existence  and  removal  of  the  judgments  against 
the  land,  and  the  goodness  of  the  deed  brought  to  his  house  by 
George  Withers,  and  was  ignorant  of  the  alterations  and  erasures  in 
it,  or  of  the  effect  of  them  in  avoiding  the  deed  as  to  the  other  grant- 
ors, that  this  avoids  the  contract  and  the  money  cannot  be  recovered. 

Answer  to  the  defendant's  points: 

1.  The  consideration  of  the  bond  is  the  deed  of  conveyance  of  the 
1st  of  November  1818,  and  if  at  the  time  of  trial  all  incumbrances 
are  removed  from  the  land  conveyed,  the  plaintiff  has  a  right  to  re- 
cover.    The  defendant  relies  upon  equity  in  resistance  of  the  pay- 
ment of  the  bond,  and  if  he  has  sustained  no  injury  from  incum- 
brances, and  now  can  sustain  none,  because  they  are  removed,  his 
defence  on  this  point  fails. 

2.  Answered  in  the  affirmative. 

3.  If  the  jury  find  the  facts  as  stated  in  this  point,  the  legal  con- 
sequences follow,  that  the  bond  is  avoided,  and  the  mere  recording 
of  the  deed  will  not  revive  or  confirm  it. 

4.  If  the  jury  find  the  facts  as  stated  in  this  point,  and  that  the 
defendant  was  prevented  from  making  inquiries,  by  false  and  fraudu- 
lent representations  of  the  plaintiff  Withers,  the  bond  is  void. 

5.  If  the  jury  find  the  facts  as  stated  in  this  point,  the  deed  is  void. 

6.  If  the  jury  find  the  facts  as  stated  in  this  point,  the  law  is  as 
stated  therein ;  but  if  Atkinson  knew  of  the  alterations  and  erasures 
in  the  deed  and  acknowledgement,  and  waived  making  any  objec- 
tion to  them,  and  accepted  and  recorded  the  deed,  he  cannot  now 
set  up  as  a  defence  those  objections  to  the  deed  which  he  volunta- 
rily relinquished. 

7.  An  act  of  assembly  establishes  a  method  by  which  femes  covert 
may  convey  their  estates,  or  any  interest  which  they  have  in  land, 
and  which,  if  correctly  pursued,  effectually  conveys  the  estate  or 


JVo».  1832.]  OF  PENNSYLVANIA.  U\ 

[Withers  v.  Atkinson.] 

interest  of  the  wife.  The  signing  and  sealing  and  delivery  of  a  deed, 
by  a  married  woman,  does  not  convey  her  interest,  nor  bar  her  dower, 
unless  she  has  been  separately  examined  by  a  magistrate,  and  a  cer- 
tificate made  by  him  that  the  requisites  of  law  had  been  complied 
with ;  this  certificate,  appended  to  the  deed,  is  the  most  operative 
part  of  the  conveyance  as  relates  to  the  married  woman  ;  it  is  indis- 
pensable to  the  transfer  of  her  interest  and  estate.  The  date  of  this 
certificate  and  acknowledgement  was  a  material  component  part 
thereof,  and  if  you  believe  the  date  inserted  by  the  justice  was  erased 
from  the  acknowledgement,  and  another  date  inserted  by  George 
Withers,  or  any  one  at  his  instance,  the  acknowledgement  is  falsi- 
fied and  avoided,  and  the  premises  conveyed  by  the  grantors  is  liable 
to  the  dower  of  their  wives  in  the  hands  of  Jltkinson  the  grantee. 

8.  If  the  jury  are  of  opinion,  from  the  evidence,  that  the  deed  was 
altered  in  the  date,  after  the  delivery  of  it,  by  John  and  Michael 
Withers,  two  of  the  grantors,  this  avoids  the  deed  as  to  them,  and 
Atkinson's  remedy  on  the  warranty,  in  case  of  eviction,  is  gone. 

9.  Answered  in  the  affirmative. 

10.  Answered  in  the  affirmative. 

The  jury  under  this  direction  found  a  verdict  for  the  defendant, 
upon  which  judgment  was  rendered.  The  errors  assigned  here  were 
to  the  opinion  of  the  court  as  contained  in  bills  of  exception,  and  in 
their  answers  to  defendant's  points. 

Jenkins,  for  plaintiff  in  error. 

The  case  presented  is  that  of  one  who  purchased  land  by  articles 
of  agreement,  gave  his  bonds  for  the  purchase  money,  went  into 
possession,  received  his  deed  of  conveyance,  held  that  possession,  and 
enjoyed  the  profits  of  the  land  for  ten  years,  during  which  time  he 
sold  and  conveyed  a  part  of  it,  and  now  sets  up  as  a  defence  to  the 
payment  of  his  bond,  that  an  erasure  and  alteration  were  made  by  the 
vendor  of  the  date  of  the  deed,  subsequently  to  its  execution  ;  and 
that  judgments  existed  against  the  land  at  the  time  of  the  sale  and 
delivery  of  the  deed,  although  it  is  not  pretended  that  he  has  'been: 
prejudiced  to  the  amount  of  one  farthing,  and  although  those  judg- 
ments were  actually  paid  and  satisfied  at  the  very  time  the  defence 
was  making  on  the  trial  of  the  cause ;  and  all  this  without  offering 
or,  indeed,  having  it  in  his  power,  to  reconvey  to  the  vendor,  or  place 
him  in  the  situation  he  was.  If  this  be  an  equitable  defence,  and 
sustainable  only,  in  any  case,  upon  the  principle  that  he  who  seeks 
equity  must  do  equity,  assuredly  it  cannot  prevail  here. 

Where  a  contract  is  executed,  even  in  a  case  where  fraud  was 
practised  by  one  of  the  parties,  equity  will  not  relieve  unless  the  par- 
ties be  restored  to  their  original  situation.  1  Mad.  Cha.  330;  Sugd. 
Fend.  480. 

The  court  erred  in  their  instruction  to  the  jury,  that  it  is  the  duty 
of  a  vendee  to  inform  a  vendor  of  the  existence  of  judgments  against 
him.  The  concealment  of  a  fact,  which  any  man  of  common  sense 

2F 


212  SUPREME  COURT  [Lane 

[Withers  v.  Atkinson.] 

can  discover  for  himself,  is  not  a  fraud  ;  for  it  is  the  duty  of  a  vendee 
to  inquire  for  incumbrances  where  they  may  be  found,  if  they  exist. 
Sugd.  Vend.  314,  308 ;  2  Rawle  90;  11  Serg.  fy  Rawle  246. 

The  vendee  made  no  objection  to  the  deed  until  he  was  sued  for 
the  purchase  money,  but  accepted  the  same,  and  held  undisturbed 
possession  under  it  for  several  years,  without  any  notice  to  the  ven- 
dor of  a  defect  in  it,  or  of  his  having  any  reason  to  be  dissatisfied  with 
it.  This  was  an  execution  of  the  contract,  and  the  agreement  be- 
tween the  parties  should  not  have  been  received  in  evidence.  Cook 
v.  Cassel,  8  Serg.  fy  Rawle  268. 

The  question  proposed  to  the  witness,  as  contained  in  the  bill  of 
exceptions,  was  to  test  his  credibility  and  accuracy ;  his  memory 
was  refreshed  by  certain  notes  of  evidence  ;  was  it  not  very  important 
to  show,  by  the  same  witness,  that  he  was  informed  from  him  who 
made  the  alleged  notes,  that  they  were  not  notes  of  evidence  at  all  1 
JVorrw's  Peake  269. 

Montgomery,  for  defendant  in  error ;  who  was  requested  by  the 
court  to  confine  himself  to  the  effect  of  the  incumbrances,  and  the 
representations  of  the  vendor  on  that  subject. 

The  articles  of  agreement  between  the  parties  expressly  stipulated, 
that  a  title  should  be  made  clear  of  all  incumbrances ;  and  the  proof 
in  addition  to  this  is,  that  the  vendor,  upon  being  inquired  of  by  the 
vendee,  declared  that  there  was  "  not  a  judgment  against  him  under 
the  canopy  of  heaven ;"  when  in  fact  judgments  existed  to  the 
amount  of  14,000  dollars  against  him.  This  was  false  and  fraudu- 
lent. A  purchaser  has  a  right  to  call  for  information  from  a  vendor; 
Perkins  v.  Gray,  3  Serg.  fy  Rawle  327  ;  and  if  given  to  him  falsely, 
it  is  fraudulent ;  the  mere  concealment  of  it,  where  the  purchaser  had 
other  means  of  information,  may  not  be  so.  He  is  lulled  into  secu- 
rity, and  prevented  from  inquiry  by  false  representations.  Duncan 
v.  M'Culloch,  4  Serg.  <$•  Rawle  483;  Cook  v.  Grant,  16  Serg.  <$• 
Rawle  210;  Arnot  v.  Griscomb,  I  Ves.  95;  2  Page's  Cha.  Rep.  390; 
2  Kent's  Com.  482. 

The  deed  which  the  vendor  palmed  upon  the  purchaser  was  false, 
forged  and  fraudulent,  and  was  not  therefore  an  execution  of  the 
contract.  Upon  every  principle  therefore,  this  cause  depended  upon 
its  merits,  regardless  of  the  deed,  and  should  have  been  tried  upon 
the  rights  of  the  parties,  and  the  facts  as  they  existed  when  the  suit 
was  instituted. 

A  witness  can  not  be  cross-examined  as  to  an  immaterial  fact  for 
the  purpose  of  discrediting  or  contradicting  him.  Buckley  v.  Ell- 
maker,  16  Serg.  fy  Rawle  72. 

The  opinion  of  the  Court  was  delivered  by 

HUSTON,  J. — I  shall  content  myself  with  noticing  those  matters 
in  this  long  record  which  are  material  to  the  cause  trying.  The 
first  bill  of  exceptions  contains  matter  which,  if  doubtful,  ought  not 


Nov.  1832.]  OF  PENNSYLVANIA.  243 

[Withers  v.  Atkinson.] 

to  continue  so.  The  witness  was  called  to  prove  what  two  persons, 
now  dead,  swore  before  arbitrators  in  this  cause  at  some  time  before 
1825 — 1826,  when  the  last  of  them  died.  There  had  been  a  for- 
mer trial  of  this  case  in  December  1828,  at  which  the  same  witness 
had  been  called  to  prove  the  same  matters  in  substance  ;  viz.  that 
these  two  persons  had  sworn,  that  at  the  time  their  father  accepted  the 
deed  and  gave  the  bond  in  question  to  Withers,  he,  Withers,  had  said 
there  was  not  a  judgment  against  him  under  the  canopy  of  Heaven. 

The  witness  at  this  trial  was  admitted,  upon  his  swearing  that  he 
could  remember  all  that  the  deceased  witnesses  had  sworn.  After 
his  examination  in  chief,  he,  on  his  cross-examination,  said,  "  I  do 
not  remember  that,  at  a  former  trial,  I  testified,  as  now,  on  there  being 
no  judgments  against  Withers ;  but  I  remember  now  they  did  testify 
that  before  the  arbitrators."  After  some  more  questions,  to  which 
he  answered,  he  did  not  remember  what  any  other  witness  than  the 
two  deceased  swore,  he  said,  "  the  reason  why  I  remember  what 
the  Atkinsons  swore  and  not  the  others,  they  were  my  neighbours, 
and  frequently  heard  them  mention  it  over  since.  The  matter  which 
principally  strengthened  my  memory  since  is  George  Jacobs's  notes, 
which  I  have  seen  frequently  since ;"  and  again,  says,  he  saw  Jacobs 
taking  notes  at  the  arbitration,  and  believes  Jacobs  took  notes  of  all 
the  evidence,  &c. ;  that  he  saw  those  notes  in  Jacobs's  office.  The 
plaintiff  then  offered  to  ask  the  witness,  Did  you  hear  George  Jacobs 
admit  in  court,  when  examined  as  a  witness,  that  the  only  notes  he 
had,  were  memoranda  of  what  he  expected  to  prove,  made  by  him 
before  the  arbitration  1  The  defendant  objected  ;  the  court  overruled 
the  question,  and  exception  taken  ;  and  this  decision  is  attempted  to 
be  supported  by  saying  G.  Jacobs  was  alive  and  could  have  been 
sent  for  and  examined.  Most  clearly  the  question  should  have  been 
put.  Mr  Jacobs,  or  somebody  else,  had  shown  those  notes  to  the  wit- 
ness, who  had  frequently  read  them,  and  impressed  their  contents  on 
his  memory,  under  a  belief  that  those  were  notes  of  what  the  wit- 
nesses swore  before  the  arbitrators,  taken  down  at  the  time  of  swear- 
ing; but  if  Mr  Jacobs  had  afterwards  said  much  more,  if  he  swore  at 
the  former  trial  of  this  cause  that  he  had  no  notes  of  what  witnesses 
swore  before  arbitrators,  it  would  show  that  the  witness  had  been 
shown  as  notes  of  testimony,  writings  which  were  no  such  thing ; 
and  if  he  did  hear  Mr  Jacobs  swear  in  1828  that  he  had  no  notes,  it 
is  strange  that  he  did  not  recollect  it,  when  something  purporting  to 
be  notes  of  the  evidence  was  shown  him,  and  more  strange,  that  he 
would  persist  in  calling  them  what  he  heard  Mr  Jacobs  swear  they 
were  not. 

But  as  the  cause  goes  back,  it  is  important  that  an  opinion  on  the 
whole  subject  should  be  given.  It  is  not,  as  a  general  rule,  true, 
that  a  man  called  to  testify  what  witnesses,  sworn  at  a  former  trial, 
said,  can  refresh  his  memory  by  what  a  third  person,  or  the  witness 
himself,  has  since  told  him  was  sworn.  He  is  called  to  testify,  and  can 
only  be  admitted  to  testify,  what  was  said  on  oath  in  court ;  he  can 


244  SUPREME  COURT  [Lancaster, 

[Withers  v.  Atkinson.] 

not  substitute  for  this  what  has  since  been  said  by  the  same  person 
when  not  under  oath,  or  said  by  any  other  person  not  under  oath. 
The  witnesses  were  dead  before  the  former  trial  in  1828 ;  he  could 
have  no  conversations  with  them  since  their  death,  and  his  memory 
was  not  refreshed  by  any  such  means,  he  therefore  says,  his  memory 
was  principally  refreshed  by  Mr  Jacobs's  notes,  which  he  has  seen  fre- 
quently since.  This  is  worse  than  the  other.  A  witness  cannot  be 
permitted  to  refresh  his  memory  by  notes  or  memoranda  made  by  any 
other  person  than  himself,  except  perhaps  in  a  case,  where  he  looked 
over  the  writer,  and  saw  at  the  time  that  what  was  written  was  writ- 
ten correctly ;  or  where  he,  immediately  after  it  was  written,  read  it 
over  and  found  it  correct ;  and  where  he  can  positively  swear,  that  the 
paper  to  which  he  refers  to  refresh  his  memory  is  the  very  one  he  saw 
written,  or  which  he  read  immediately  after  it  was  written  ;  and  I 
make  these  exceptions  with  a.  perhaps.  That  matter  is  not  before  us, 
and  not  agreed  ;  but  it  is  out  of  the  question,  that  a  man  who  sees  an- 
other taking  notes  of  testimony  shall  be  heard  to  testify  what  he  did 
not  remember  until  he  read  those  notes.  Where  a  man  who  took  notes 
can  refresh  his  memory  by  referring  to  them,  or  where  he  can  read 
them,  is  settled  by  decisions  of  our  own  courts  ;  but  there  is  no  deci- 
sion, no  principle,  and  I  believe  no  dictum,  that  a  man  may  in  a  case 
like  the  present  refresh  his  memory  by  reading  what  was  written  by 
a  third  person,  and  not  seen  by  the  witness  for  years  after  it  was 
written.  If  then  this  testimony  had  come  out  before  the  witness  was 
examined  in  chief,  he  ought  to  have  been  rejected  ;  and  coming  out 
afterwards,  the  jury  ought  to  have  been  told  to  disregard  it  totally. 

The  next  two  bills  of  exception  are  taken  without  any  cause. 
The  agreement  between  the  Messrs  Withers  and  Atkinson,  was 
made  in  1818.  The  articles  of  agreement  drawn  by  G.  Witherst 
contain  as  full  and  fair  covenants  as  can  be  devised.  The  agree- 
ment continued  open  till  April  1820,  Atkinson  having  taken  possess- 
ion in  November  1818,  and  making  partial  payments  every  two  or 
three  months.  It  must  then  be  perfectly  immaterial  in  this  stage  of 
the  cause,  and  in  every  other,  whether  the  contract  commenced  in 
consequence  of  Atkinson  proposing  to  purchase,  or  in  consequence  of 
Withers  proposing  to  sell;  and  it  must  be  equally  immaterial  whether 
Withers  advised  Atkinson  to  purchase,  or  did  not  advise  him ;  and  yet 
these  are  made  the  subject  of  two  bills  of  exceptions. 

Before  I  come  to  what  is  called  the  important  point  in  the  cause, 
it  must  be  understood  that  Mr  Black  was  employed  to  survey  the 
land  and  draw  the  deed,  and  did  both.  He  was  offered  to  prove,  that 
since  the  deed  was  executed,  an  alteration  had  been  made  in  the  date 
of  it;  or,  in  other  words,  to  prove  that  it  was  drawn  and  executed  in 
the  year  1819,  whereas,  it  now  purports  to  have  been  executed  and 
acknowledged  1st  November  1818.  This  testimony  was  objected  to, 
but  admitted  and  exception  taken.  It  was  rightly  admitted;  he  was 
the  scrivener  who  drew  the  deed ;  one  of  the  subscribing  wit  nesses  to  it, 
and  the  justice  of  the  peace  before  whom  it  was  acknowledged.  The 


JVot>.  1832.]  OF  PENNSYLVANIA.  245 

[Withers  v.  Atkinson.] 

evidence,  when  admitted,  was  most  unsatisfactory ;  he  was  twice  ex- 
amined; he  swore  positively  that  the  deed  was  drawn  and  executed 
in  1819;  but  on  what  day,  or  even  in  what  month,  he  could  not  tell. 
There  were  three  grantors,  Michael  Withers,  George  Withers  and  wife, 
and  John  Withers  and  wife.  The  parties  lived  ten  or  twelve  miles 
apart,  and  he  took  the  acknowledgement  of  George  and  wife  on  one 
day ;  John  and  wife  on  another  day,  and  Michael  at  a  different  time  and 
place  :  yet  the  acknowledgement  was  but  one,  and  purported  to  have 
been  all  of  the  1  st  of  November  1818.  John  Fullmer  was  the  other  sub- 
scribing witness,  and  rode  round  with  him,  and  saw  all  of  them  ac- 
knowledge as  well  as  the  justice  did.  I  do  not  say  there  was  really 
any  thing  wrong  or  very  uncommon  in  this;  a  different  course,  how- 
ever, might  have  been  taken.  Atkinson  was  not  present,  and  the  deed 
was  not  then  delivered  to  him ;  it  was  delivered  to  him  on  the  1st  April 
1820,  when  he  paid  some  more  money,  and  gave  the  bond  on  which 
this  suit  is  brought.  In  drawing  the  deed,  the  scrivener  had  left  a 
blank  for  the  day  and  month.  As  the  deed  was,  these  were  filled  with 
1st  November  ;  and  at  the  examination  he  thought  this  was  done  in 
the  deed  by  G.  Withers,  and  in  the  acknowledgement  by  J.  Fullmer, 
and  this  at  the  time  the  deed  was  executed.  Afterwards,  he  was 
called  again,  and  says,  "  I  cannot  say  precisely  when  the  deed  was 
acknowledged,  except  from  the  date  in  the  deed.  The  reason  why 
I  believe  the  date  in  the  deed  was  altered,  was  because  I  have  never 
been  in  the  practice  of  antedating  any  deed  which  has  been  executed 
by  me.  I  am  under  the  impression  the  deed  was  left  blank,  it  was 
not  dated  1st  November  1818:  as  respects  the  year,  I  have  no  doubt; 
it  was  in  the  year  1819  it  was  executed."  Immediately  after,  he 
says,  "  I  have  thought  on  this  matter,  and  have  endeavoured  to  re- 
collect the  truth ;  the  word  '  November'  was  written  at  the  time  I 
drew  the  deed,  and  not  at  the  time  I  took  the  acknowledgement;" 
and  again  he  says,  "  the  date  in  the  acknowledgement  was  filled  up 
by  Fullmer  at  the  time  I  took  the  acknowledgement." 

It  was  apparent  the  letters  "  eigh,"  in  the  word  eighteen,  were 
written  on  an  erasure.  This  was  not  discovered  at  the  trial  of  this 
cause  before  arbitrators,  nor  till  five  or  six  years  after  the  commence- 
ment of  it.  Many  men  of  more  experience,  and  as  careful  as  Mr 
Black,  have  witnessed  deeds  and  taken  the  acknowledgement  of  the 
grantors  and  their  wives,  without  ever  looking  at  the  date  of  the 
deed  ;  and  it  was  no  imputation  on  his  integrity  that  he  did  not  look 
at  it;  nor  was  it  any  imputation  on  his  memory,  that  in  1830  he 
could  not  recollect  all  that  he  knew  in  1819.  I  shall  show  that  this 
matter  was  not  so  material  as  seems  to  be  supposed  by  the  complain- 
ants. It  was  assumed,  but  without  very  conclusive  evidence,  that 
the  word  nineteen  had  been  changed  to  eighteen  in  the  date  of  the 
deed,  since  the  execution  and  acknowledgement,  and  that  it  was  done 
by  G.  Withers,  or  by  Fullmer,  who  was  in  his  employ.  Now  the  only 
proof  was,  that  Fullmer  had  been  in  Withers 's  employment  some  years 
before.  Fullmer  was  dead  before  this  discovery  was  made.  When 


246  SUPREME  COURT  [Lancaster, 

.  [Withers  v.  Atkinson.] 

Atkinson  was  able  to  pay  what  he  had  agreed  as  the  first  instal- 
ment, viz.  1st  April  1820,  the  deed  was  given  to  him,  and  he  gave 
his  bond  for  the  residue  of  the  purchase  money;  soon  after  he  took 
the  deed  and  had  it  recorded ;  it  was  then  as  it  is  now. 

The  first  witness,  on  whose  admission  I  have  commented,  swore 
that  at  the  trial  before  arbitrators,  two  sons  of  the  defendant  were 
examined,  and  proved  that  when  G.  Withers  brought  the  deed  to 
their  father  on  the  1st  of  April  1820,  and  when  defendant  executed 
this  bond,  G.  Withers  said  there  was  not  a  judgment  against  him 
under  the  canopy  of  heaven ;  and  there  were  many  judgments  against 
him,  as  appears  by  the  records  produced  ;  though  it  was  admitted 
none  of  them  had  ever  been  levied  on  this  land ;  and  also,  that  before 
the  trial  all  were  paid  and  satisfied. 

On  the  other  hand  it  was  proved,  and  at  length  admitted,  that 
George  Withers,  at  the  time  the  deed  was  delivered  and  the  bond 
given,  did  tell  Atkinson  there  were  two  large  judgments  against  him, 
and  also  delivered  to  Atkinson  a  release  of  the  tract  in  question,  from 
the  lien  of  those  judgments.  Every  thing  was  denied,  and  testimony 
given  after  a  very  tedious  trial,  proving  all  alleged  on  one  side,  and 
the  other,  if  believed. 

As  is  the  custom  here,  certain  propositions  were  stated  to  the 
court,  on  which  they  were  requested  to  lay  down  the  law  to  the  jury. 

The  first  point  made  by  defendant's  counsel  was  rightly  abandoned 
here.  The  law  on  that  subject  is  settled  by  this  court  in  Cassel  v. 
Cook,  8  Serg.  fy  Rawle  293,  and  many  other  cases.  Where  the  suit 
is  on  articles  of  agreement,  before  deed  delivered  and  bonds  given 
for  the  purchase  money,  before  the  plaintiff  can  demand  the  money 
or  recover  the  penalty  in  debt  for  the  money,  it  behoves  him  to 
tender  a  good  and  sufficient  conveyance.  It  is  different  after  a  deed 
is  delivered  and  accepted,  and  a  bond  is  given  for  the  purchase  mo- 
ney, which  is  itself  at  law  a  consideration  ;  and  where  the  obligor 
must  go  into  equity  for  relief,  if  the  consideration  has  failed,  or  the 
contract  has  not  been  complied  with. 

The  second,  third  and  fourth  points  are  in  substance  the  same, 
and  assert  that  the  vendor  is  bound  to  acquaint  the  purchaser  with 
incumbrances  ;  and  if  he  do  not,  or  if  he  informs  him  falsely,  he  is 
guilty  of  a  deceit :  that  if  the  vendor  states  an  untruth  as  to  this 
matter,  the  contract  is  void,  and  cannot  be  confirmed  by  any  subse- 
quent declarations  or  acts  by  which  its  fairness  is  acknowledged  ; 
and  if  this  was  the  case  here,. the  facts,  that  Atkinson  took  possession 
of  the  land,  has  enjoyed  it  ever  since  without  molestation  from  any 
one,  and  has  sold  part  of  it,  do  not  alter  the  case,  or  make  him  liable 
to  pay  the  purchase  money. 

There  is  no  subject  on  which  we  find  so  much  in  the  law  books 
as  the  fairness  of  contracts ;  and  if  we  were  to  judge  from  their  argu- 
ments in  court,  no  subject  on  which  men  of  talents  and  learning 
have  such  vague  and  strange  opinions.  The  above  is  a  fair  state- 
ment of  the  positions  laid  down  in  this  cause :  which  seem  to  blend  the 


JVo».  1832.]  OF  PENNSYLVANIA.  247 

[Withers  v.  Atkinson.] 

case,  where  a  man,  who  has  been  guilty  of  fraud  in  making  a  con- 
tract, seeks  to  carry  into  effect  such  fraudulent  contract,  without 
rectifying  or  allowing  for  the  advantage  he  has  obtained ;  with  cases 
where  the  contract  has  afterwards  been  completed  by  both  parties, 
and  where  the  defect  complained  of  was  remedied  and  removed 
by  him  who  concealed  it  before  the  other  suffered  from  it,  nay,  before 
he  knew  of  it.  It  seems  also  to  blend  the  cases  under  and  within 
the  statute  of  fraudulent  conveyances,  which  declares  deeds  within 
its  provisions  utterly  void  and  of  no  effect  against  creditors,  with 
frauds  in  other  cases,  in  which  Lord  Coke  tells  us,  the  common  law 
rectifies  what  is  amiss  and  leaves  the  rest  as  the  agreement  left  it. 
I  certainly  do  not  intend  to  be  the  apologist  of  fraud  or  misrepre- 
sentation in  contracts,  or  in  any  situation  in  life  ;  but,  except  in  this 
and  the  two  adjoining  counties,  I  have  never  heard  it  contended,  that 
if  a  man  in  selling  a  tract  of  land  made  any  wilful  mistatement  re- 
pecting  it,  although  no  injury  has  resulted  to  the  vendee,  that  he 
thereby  forfeited  his  tract  of  land,  and  that  the  right  to  it  at  once 
vested  in  the,  person  to  whom  he  stated  the  falsehood,  without  the 
payment  of  ^.ny  purchase  money.  When  a  contract  is  avoided  for 
fraud,  it  is  avoided  throughout ;  it  is  as  if  it  had  never  existed  ;  and 
the  property  is  in  the  vendor  as  if  no  such  contract  had  ever  been 
made ;  and  the  vendee  if  he  has  paid  money  recovers  it.  This  ap- 
plies to  contracts  not  completed,  more  generally  than  to  those  which 
have  been  carried  into  effect ;  and  there  are  very  few  instances  in 
which  it  can  be  applied  to  cases  in  which  the  purchaser  has  received 
the  possession  and. cannot  restore  it  to  the  vendor.  In  such  case  the 
purchaser  is  compensated  by  recovering  damages  for  the  injury  he 
has  sustained  from  the  misrepresentation.  Without  attempting  to 
write  a  system  upon  conveyancing,  and  upon  the  effect  of  fraud  on 
contracts  executory  or  executed,  I  will  refer  to  a  few  authorities 
and  principles  which  will  settle  this  case.  In  the  first  place,  the 
books  are  full  of  distinctions  between  defects  and  incumbrances  on 
an  estate  which  are  secret,  and  those  which  are  open  and  palpable, 
which  a  purchaser  can  discover,  if  he  will  look  for  them,  and  the 
difference  between  the  register  counties  in  England  and  the  other 
counties,  in  the  former  of  which  the  purchaser  can  find  all  or  nearly 
all  possible  incumbrances.  Sugden  states,  that  although  the  vendor 
or  his  agent  states  there  are  no  incumbrances,  or  none  but  such  as 
he  has  given  a  list  of,  yet  it  is  proper  to  search  for  judgments  and 
mortgages  immediately  before  the  deed  is  executed.  Sugd.  Fend. 
302.  Next  he  tells  us,  if  an  incumbrance  be  discovered  before  the 
deed  is  executed  and  delivered,  and  the  purchase  money  paid,  the 
vendor  must  discharge  it,  if  the  ventlee  so  insist,  whether  the  pur- 
chaser has  or  has  not  agreed  to  covenant  against  incumbrances ;  or 
the  vendee  may  refuse  to  accept  the  deed,  and  in  case  of  false  repre- 
sentations may  recover  any  expenses  incurred  in  the  course  of  the 
purchase.  Sugd.  Vend.  312.  Or  if  he  has  accepted  the  deed,  the  pur- 
chaser, if  he  has  not  paid,  may  retain  the  purchase  money  until  the 


248  SUPREME  COURT  [Lancaster, 

[Withers  v.  Atkinson.] 

incumbrance  is  paid  off.  Sugd.  Vend.  312.  So  if  the  purchaser  had 
paid  the  money,  but  deeds  are  not  completed,  he  may  refuse  to  ac- 
cept the  deed,  or  to  enter  on  the  land,  or  if  he  has  entered,  may  re- 
store the  possession  and  sue  for  his  money ;  and  this  though  he  was 
not  entitled  to  a  covenant  against  the  incumbrance  discovered ;  but, 
if  the  deed  has  been  executed,  and  the  money  all  paid,  and  the  cove- 
nant in  his  deed  do  not  extend  to  the  incumbrance  as  a  defect  of 
title,  he  is  without  redress.  If  the  covenants  do  extend  to  it,  his 
remedy  is  on  them.  The  writer  then  discusses  a  point  immaterial 
in  this  country,  viz.  whether,  after  having  accepted  the  deed  and 

fiven  bonds,  the  purchaser  can  retain  for  incumbrances  not  discovered 
y  him,  and  against  which  he  has  no  covenants;  and  he  comes  to 
the  conclusion  that  he  cannot  at  present  in  England,  unless  he  can 
prove  that  the  vendor  knows  of  the  incumbrance  or  defect ;  and  then 
he  may  recover  compensation  at  law  by  an  action  on  the  case,  or  have 
relief  in  equity.  But  there  is  no  intimation  there,  or  any  where  else 
that  I  know  of,  that  the  damages  at  law  or  the  relief  in  equity  is  more 
than  compensation  for  the  injury  ;  and  of  course,  if  no  injury,  as  in 
this  case,  where  the  vendor  paid  off  the  incumbrances  before  any  in- 
jury was  sustained,  nay,  so  far  as  we  know,  before  he  was  threatened 
with  injury,  the  compensation  would  be  what  the  injury  was,  that  is, 
nothing. 

I  have  said  that  this  discussion  is  not  material  here ;  because  it  is 
now  settled  in  this  country,  as  it  was  formerly  in  England,  that  the 
purchaser  may  retain  for  incumbrances  or  for  defect  of  title,  where  he 
has  not  paid  the  purchase  money,  even  though  he  has  given  bonds 
for  it.  See  Steinkauer  v.  Witman,  I  Serg.  fy  Rawle  438,  447.  Hart 
v.  Porter,  5  Serg.  fy  Rawle  204.  This  last  case  has  settled  also 
what  ought  to  have  governed  this  case  on  this  point,  viz.  that  until 
the  incumbrance  is  removed,  the  purchaser  may  defend  himself, 
though  he  has  no  covenant  against  incumbrances ;  but,  that  if  the 
incumbrance  is  removed  after  suit  brought  on  the  bonds  of  the  pur- 
chaser, froni  that  time  it  ceases  to  be  a  defence  to  the  purchaser,  and 
the  vendor  can  recover  on  his  suit,  but  must  pay  the  costs  up  to  the 
time  when  the  incumbrance  was  removed,  and  notice  of  it  to  the 
purchaser.  This  case  has  been  repeatedly  recognized  since.  I 
shall  notice  the  alleged  dower  in  the  wives  of  John  and  George 
Withers  hereafter. 

The  fifth,  sixth,  eighth,  ninth  and  tenth  points  relate  to  the  alter- 
ations alleged  to  have  been  made  in  the  deed ;  as  does  also  the 
seventh,  which  I  shall  notice  separately. 

These  points,  in  substance,  amount  to  this ;  that  any  alteration  in 
a  deed  avoids  it,  without  inquiry  who  altered  it,  if  the  alteration  is 
made  after  acknowledgement  before  a  justice,  though  before  delivery ; 
and  in  an  immaterial  point,  still  it  avoids  it,  and  releases  the  defend- 
ant from  payment  of  his  bond  ;  that  the  alteration  by  George  Withers, 
or  by  his  procurement,  avoids  it,  as  (he  deed  of  John  and  Michael 
Withers,  and  Atkinson  would  have  no  remedy  against  them  on  his 


JVot>.  1832.]  OF  PENNSYLVANIA.  249 

[Withers  v.  Atkinson.] 

warranty  ;  that  the  alterations  leave  it  subject  to  all  liens  to  this  day 
against  Michael  and  John  Withers;  and  that  the  delivery  of  such 
altered  deed  to  Atkinson  was  a  fraud,  and  discharged  him  from  all 
liability  to  pay  his  bond.  This  is  a  full  summary  of  the  points,  ex- 
cept that  the  counsel  request  the  court  to  state  that  the  facts,  as  well 
as  the  law,  are  as  they  state  them. 

The  subject  of  alteration  of  deeds  is  a  wide  field,  into  which  I  do 
not  propose  to  enter  further  than  this  case  requires ;  because  the  only 
evidence  that  this  deed  was  altered,  as  to  its  date,  is,  when  fairly 
examined,  no  more  than  just  this  ;  that  Mr  Black  at  that  time  did 
not  look  at  the  date  in  the  deed,  or  if  he  did,  he  does  not  now  remem- 
ber itj  and  his  impression  is,  that  if  he  had  seen  the  date  he  would 
have  objected  to  it ;  and  because,  in  the  view  I  shall  take  of  this 
matter,  it  has  little  bearing  on  this  cause.  I  shall  say,  that  1  ap- 
prove of  the  modern  cases,  which  do  not  destroy  a  deed  because  the 
mice  have  nibbled  off  the  seal,  or  because  accident  has  defaced  a  part 
of  it,  or  fire  or  water  destroyed  it.  We  have  provision  in  our  laws  for 
supplying  the  loss  of  a  deed. 

I  also  argue  that  the  courts  ought  so  to  decide,  that  every  man 
who  is  a  party  to  a  deed  should  be  deterred  from  any  alteration  in  it 
after  it  has  become  a  deed,  by  making  it  void,  as  to  him  who  altered  it, 
and  leaving  it  effectual  to  vest  the  estate  of  the  other  party.  In  short, 
that  when  a  jury  find  that  one  of  the  parties  has  altered  a  deed,  after 
it  became  effectual  by  delivery,  he  shall  never  support  a  suit  on  that 
deed.  But  that,  although  the  deed  is  altered  after  delivery  by  the 
grantor,  and  although  he  thereby  loses  all  benefit  of  the  covenants 
contained  hi  it,  still  the  alteration  does  not  vest  the  estate  in  the 
grantor.  This  doctrine  is  not  only  well  established  by  ancient  and 
modern  authorities,  but  consonant  to  reason.  If  the  owner  of  a 
deed  alters  it  in  any  way,  it  becomes  void  as  to  him.  Pigotfs  case, 
1 1  Co.  27 ;  Shep.  Touchstone  57,  68,  69.  The  modern  cases  say, 
an  alteration  by  a  stranger,  though  material,  will  not  have  this 
effect;  Jackson  v.  Malin,  15  Johns.  297;  Reesv.  Overbaugh,  6  Cowen 
746.  But  altering  the  deed  by  the  grantor  operates  riot  to  divest 
an  estate  which  has  passed  by  it.  "  A  deed  of  revocation,  and  a 
mere  deed  of  settlement  by  that  deed,  though  after  the  sealing  and 
execution  blanks  were  filled  up  in  said  deed,  and  deed  not  read  again 
to  the  party,  and  not  resealed  and  executed,  yet  held  a  good  deqd." 
Paget  v.  Paget,  I  Rep.  in  Cha.  410.  I  have  quoted  the  whole  of  this 
case,  and  I  understand  it  as  deciding  the  deed  good  to  pass  the  estate ; 
it  is  so  understood  by  the  annotator  to  Co.  Lit.  225,  226,  and  is  the 
case  there  referred  to  as  being  in  1  Rep.  in  Cha.  100 ;  but  at  page  100 
there  is  nothing  on  that  subject.  And  in  more  modern  times,  in 
Hatch  v.  Hatch,  9  Mass.  Rep.  311,  we  find  the  same  doctrine ;  and 
Lewis  v.  Payn,  8  Cowen  71 ;  and  the  cases  there  cited,  some  of  which 
I  have  examined,  and  others  I  could  not,  at  this  time.  I  establish 
this  position,  that  if  a  deed  be  altered  after  delivery,  the  alteration 
destroys  the  deed  as  to  the  party  who  altered  it,  but  does  not  destroy 
2  G. 


250  SUPREME  COURT  [Lancaster, 

•% 

[Withers  v.  Atkinson.] 

the  estate.  If  the  deed  contain  covenants,  the  party  altering  it  loses 
all  remedy  on  them  ;  but  the  title  is  not  divested.  I  omit  the  distinc- 
tion, taken  in  Lewis  v.  Payn,  as  to  incorporeal  rights  which  lie  in 
grant,  and  estates  passing  the  realty,  as  not  material  here.  In  that 
case  there  were  counterparts,  each  executed  by  both  parties,  one  of 
whom  altered  the  part  in  his  possession,  and  would  have  lost  all 
remedy  on  it  if  that  had  been  the  only  deed,  but  his  right  was 
saved  by  the  other  deed,  which  remained  unaltered. 

It  would  indeed  be  strange,  if  the  grantor  of  a  tract  of  land 
could  make  the  title  void  as  to  the  purchaser,  by  altering  the  deed 
after  execution,  and  before  delivery,  so  that  it  would  pass  for  nothing, 
and  leave  the  land  for  his  heirs  or  creditors,  after  he  was  paid  for  it ; 
and  this  in  consequence  of  his  own  act.  If  it  contained  covenants  in 
his  favour,  he  would  lose  all  benefit  from  them  ;  but  it  does  not  re- 
vest the  estate  in  the  grantor,  nor  take  from  the  purchaser  the  bene- 
fit of  any  covenants  in  his  favour.  So  if  the  purchaser  alters  the 
deed  after  it  is  delivered  to  him,  he  loses  all  benefit  from  the  cove- 
nants in  his  favour;  but  it  does  not  destroy  his  title,  or  revest  the 
estate  in  the  grantor.  The  case  in  8  Cowen,  just  cited,  is  full  to  show 
that  it  is  the  instrument  altered  which  is  rendered  void  as  to  any  bene- 
fit to  be  derived  to  the  party  who  altered  it ;  and  that,  where  he  has 
no  other  evidence  to  support  his  claim  than  the  altered  deed,  he  could 
not  recover,  having  by  his  own  act  destroyed  the  evidence  of  his 
own  demand  ;  but  that  if  he  has  other  evidence  of  his  claim,  besides 
the  deed  he  has  erased,  or  to  which  he  has  made  an  addition,  he 
may  recover  on  that  other  evidence.  There  the  landlord  had  altered 
the  lease  by  a  material  addition,  and  would  have  failed  in-recovering 
the  rent  claimed  on  that  lease,  in  that  suit,  but  for  the  production  of 
the  counterpart  by  the  tenant.  The  common  pleas  decided  that  he 
had  lost  his  rent  entirely ;  the  supreme  court  corrected  that  decision, 
and  said  he  could  recover  on  the  counterpart.  And  the  principle  of 
that  decision,  and  of  all  the  cases  cited,  is,  that  even  admitting  the 
date  to  have  been  changed  after  the  execution  and  acknowledge- 
ment, but  before  delivery,  the  alteration  does  not  affect  the  estate  of 
•Atkinson  the  purchaser ;  and  that  the  alteration  of  the  deed  does  not 
avoid  any  other  instrument  relating  to  the  same  estate,  except  the 
identical  one  altered.  The  bond  then  remains  as  good  as  ever,  and 
ought  to  be  so ;  if  the  estate  of  Atkinson  is  unimpaired,  why  should 
he  not  pay  the  purchase  money  1 

But  it  is  said  the  alteration  by  George  avoids  it  as  to  John  and 
Michael.  Now  George  was  either  their  agent,  entrusted  by  them  to 
keep  and  deliver  the  deed,  in  which  case  his  act  is  their  act,  and  will 
no  more  avoid  the  deed  as  to  them,  or  prevent  the  estate  passing  from 
them,  than  from  passing  from  himself.  Or  he  was  not  their  agent, 
and  not  entrusted  by  them,  in  which  case  it  is  an  alteration  by  a 
stranger,  as  respects  them,  and  the  alteration  will  affect  no  one;  espe- 
cially as,  under  the  circumstances  of  this  case,  it  was  a  perfectly  im- 
material alteration.  This  view  of  the  case  makes  it  unnecessary  to 


JW».  1832.]  OF  PENNSYLVANIA.  251 

[Withers  v.  Atkinson.] 

say  whether — as  a  deed  passing  land  has  no  validity  until  delivered, 
and  is,  until  delivery,  of  no  value,  and  has  no  effect  or  operation — it 
may  not  be  altered  by  the  grantor  at  any  time  after  execution  and  be- 
fore delivery ;  and  whether,  if  this  were  fully  proved,  it  would  have 
any  effect  on  the  validity  of  the  deed  for  every  purpose.  Some  of  the 
cases  cited  seem  to  put  it  on  being  an  alteration  after  delivery,  and  as 
it  is  no  deed  until  delivered,  I  see  no  reason  why  the  law  should  not 
be  so ;  but  the  point  was  not  argued — is  not  necessary  to  be  decided, 
and  I  choose  to  give  no  opinion  on  the  subject. 

It  remains  to  notice  the  seventh  point  proposed  to  the  judges,  as  to 
the  effect  of  the  alteration,  if  made  after  the  acknowledgement  on 
the  estate  and  interest  of  the  wives  of  John  and  George  Withers. 
The  deed,  independent  of  their  acknowledgement,  does  not  pass  the 
estate  of  the  wives ;  if  it  is  not  as  it  was  at  the  time  of  the  acknow- 
ledgement, then  it  is  not  the  deed  they  acknowledged,  and  their 
estate  would  not  pass.  This  I  say  in  consequence  of  the  case  in 
Burrow's  Reports.  If  it  were  not  for  that  case,  I  could  not  find  any 
very  good  reason  why — if  the  land,  and  consideration,  and  estate  grant- 
ed, continue  the  same,  and  these  are  the  only  matters  material  in 
their  examination  which  ought  to  be  known  by  them,  or  made 
known  to  them — their  estate  should  not  pass,  by  reason  of  an  imma- 
terial alteration  unknown  to  them ;  but  I  am  contented  that  case 
may  stand  as  an  authority,  and  in  this  respect  there  was  a  defence 
to  the  bond.  But  by  the  decision  of  Hart  v.  Porter,  5  Serg.  <£•  Rawley 
before  cited,  and  since  repeatedly  recognized,  the  plaintiff,  on  pro- 
curing new  deeds  of  release,  by  John  and  George,  and  their  wives, 
duly  acknowledged,  and  delivering  them  to  the  defendant,  can  re- 
cover in  this  suit,  on  paying  the  costs  up  to  the  time  of  delivering  the 
release ;  or  he  may  discontinue,  and,  after  delivering  such  releases, 
recover  in  another  action  on  the  bond. 

The  law  on  the  effect  of  misrepresentation  as  to  incumbrances, 
and  as  to  the  effect  of  the  alteration,  even  admitting  that  it  was 
made  by  G.  Withers,  or  by  Fullmer  at  his  instance,  was  not  correctly 
stated,  as  applied  to  the  facts  of  this  case. 

Judgment  reversed,  and  a  venire  facias  de  novo  awarded. 


252  SUPREME  COURT  [Lancaster, 


Longenecker  against  Zeigler. 

Upon  the  receipt,  by  a  plaintiff  in  a  judgment,  from  the  sheriff,  of  more  money  out 
of  the  proceeds  of  the  sale  of  real  estate  than  he  is  entitled  to,  an  action  can  not  be 
maintained  in  the  name  of  the  defendant  whose  property  was  sold  to  recover  it  back, 
although  brought  for  the  use  of  another  creditor,  who  would  be  entitled  to  receive 
it  from  the  sheriff.  The  action  should  be  in  the  name  of  the  sheriff.  Whether  such 
action  could  be  maintained  in  the  name  of  a  creditor  entitled  to  the  money  (Qucere). 

ERROR  to  the  district  court  of  the  city  and  county  of  Lancaster. 
Hays,  president. 

This  action  for  money  had  and  received  was  brought  in  the  name 
of  Christian  Longenecker  for  the  use  of  Samuel  Bossier  against  Conrad 
Zeigler,  and  arose  out  of  these  facts.  Longenecker  became  indebted, 
and  judgments  were  obtained  against  him  by  several  persons,  and 
among  others  by  Conrad  Zeigler  the  defendant:  his  real  estate  was 
levied  and  sold  by  the  sheriff,  and  of  the  proceeds  of  the  sale,  Zeigler 
received,  in  satisfaction  of  his  judgment,  1774  dollars;  he  had  pre- 
viously received,  from  the  defendant  interest  on  account  of  his  claim, 
which  had  not  been  credited  on  the  judgment,  so  that  he  received 
about  250  dollars  more  than  he  was  entitled  to,  and  it  was  to  recover 
this  sum  back  that  this  action  was  brought.  Samuel  Bossier  was  a 
judgment  creditor  to  whom  the  money  would  have  been  appropriated 
if  Zeigler  had  not  received  it  improperly.  The  only  question  of  im- 
portance presented  to  the  court,  was,  whether  the  action  was  rightly 
brought  in  the  name  of  Longenecker  for  the  use  of  Bossier.  The 
court  was  of  opinion  that  it  was  not,  and  rendered  a  judgment  for 
the  defendant,  which  was  the  error  assigned. 

Jenkins,  for  plaintiff  in  error. 
Heckert,  for  defendant  in  error. 

PER  CURIAM. — The  name  of  Longenecker  was  used  as  the  legal 
plaintiff  under  a  supposition  that  he  had  the  legal  title.  But  in  this 
species  of  action,  which,  in  substance,  is  said  to  be  a  bill  in  equity, 
there  is  no  distinction  between  legal  and  equitable  title,  he  being  the 
legal  party  who  is  entitled  to  the  money.  But  Longenecker  was  not 
entitled  beneficially  or  even  as  a  trustee  for  the  creditors,  for  the  law 
is  not  so  unreasonable  as  to  attribute  to  him  the  ownership  of  what 
it  has  itself  divested  him  and  appropriated  to  the  extinguishment  of 
his  debts.  Who  then  was  entitled  to  the  money  here  ?  The  sheriffs 
is  the  hand  to  pay  out,  and  a  mispayment  may  undoubtedly  be  re- 
covered back  by  him  in  an  action  founded  on  the  special  property 
which  he  has  in  the  money,  as  the  bailee  of  the  law;  so  that  the 


JVoe.  1832.]  OF  PENNSYLVANIA.  253 

Longenecker  v.  Zeigler. 

action  here  might  have  been  brought  with  perfect  safety  in  his  name. 
It  might  also,  perhaps,  have  been  safely  brought  in  the  name  of 
Bosskr,  the  creditor  ultimately  entitled ;  for,  though  there  is  no  pri- 
vity between  him  and  the  defendant,  the  money,  when  it  has  been 
received  mala  fide,  may  be  pursued  specifically  on  the  owner's  right 
of  property.  Here  there  would  seem  to  be  enough  in  the  case  to 
authorize  a  jury  to  find  that  the  money  was  received  mala  fide  ;  or 
perhaps,  a  legal  presumption  to  that  effect  would  necessarily  arise 
from  the  facts.  But  all  difficulty  on  this  and  every  other  ground 
would  have  been  avoided  by  proceeding  in  the  name  of  the  sheriff. 
Judgment  affirmed. 


Hart  against  Yunt. 

A  list  of  and  abstract  from  a  number  of  receipts  made  by  a  third  person,  and  which 
the  parties,  at  the  time  it  was  made,  admitted  to  be  right  as  credits  in  their  settlement, 
is  not  competent  evidence  to  go  to  the  jury  on  the  part  of  the  defendant  who  has  the 
original  receipts  in  his  possession ;  the  receipts  themselves  must  be  produced. 

ERROR  to  the  district  court  of  Lancaster  county.  Bradford, 
president. 

In  an  action  for  money  had  and  received  by  Daniel  Hart  against 
George  Yunt,  the  defendant  called  a  witness  to  prove  that  he  had 
met  the  parties  at  their  request,  and  examined  their  papers ;  that  he 
had  made  a  list  of  receipts  for  money  which  they  both  admitted  to  be 
right  as  credits  in  their  settlement.  The  witness  produced  the  list 
and  the  defendant  offered  to  read  it  to  the  jury,  to  which  the  plain- 
tiff objected,  but  the  court  overruled  the  objection,  and  the  paper  was 
read.  The  admission  of  this  evidence  was  the  subject  of  a  bill  of  ex- 
ceptions, and  was  assigned  for  error  here,  and  argued  by 

Hopkins,  for  plaintiff  in  error. 

Rogers  and  Jenkins,  for  defendant  in  error,  cited  1  Phil.  Ev.  78. 

The  opinion  of  the  Court  was  delivered  by 

KENNEDY,  J. — The  court  below  erred  in  admitting  the  defendant 
to  give  in  evidence  to  the  jury  the  written  memorandum  made  out 
by  George  Dutchman,  of  receipts  alleged  to  have  been  given  by  the 
plaintiff  to  the  defendant  for  moneys  received  of  him  at  different  times 
in  discharge  of  the  demand  or  claim,  for  the  recovery  of  which  the 
plaintiff  brought  this  action.  Duchman  testified  that  he  made  this 
memorandum  out  from  the  receipts  which  were  then  in  the  possess- 
ion of  the  defendant,  and  produced  by  him,  read  over  by  him  and 
agreed  to  by  the  plaintiff.  It  is  obvious  that  this  memorandum  thus 


254  SUPREME  COURT  [Lancaster, 

[Hart  v.  Yunt.] 

made  could  not  in  any  point  of  view  be  considered  or  be  claimed  to 
be  better  and  more  satisfactory  evidence  than  a  copy  of  the  receipts 
would  have  been,  after  having  been  proved  by  the  witness  to  be  a 
true  copy  of  (hem.  Now  can  it  even  be  pretended  for  a  single  mo- 
ment that  copies  of  writings,  which  appear  not  only  to  have  been  in 
existence,  but  to  have  been  in  the  possession  of  the  very  defendant 
himself,  ought  to  be  substituted  for,  and  permitted  by  the  court  to 
be  given  in  evidence  by  him  to  the  jury  instead  of  the  originals  1  This 
would  be  in  direct  violation  of  a  rule  that  is  considered  universal ; 
and  than  which  none  is  better  established  :  that  the  contents  of  a 
writing  under  such  circumstances  can  not  be  proved  by  a  copy. 
Stark,  Ev.  part  3,  sec.  10,  page  390. 

Among  other  things,  it  is  said  that  the  foundation  of  this  rule  is  a 
suspicion  of  fraud.  For  if  it  appear  from  the  very  nature  of  the 
transaction,  that  there  is  better  evidence  of  the  facts  proposed  to  be 
proved,  which  is  withheld,  a  presumption  arises  that  the  party  has 
some  secret  and  sinister  motive  for  not  producing  the  best  and  most 
satisfactory  evidence,  and  is  conscious  that  if  the  best  were  to  be  af- 
forded, his  object  would  be  frustrated.  Ibid. 

But  what  tends  to  make  the  suspicion  of  fraud  in  this  case  still 
stronger  is,  that  this  memorandum  of  the  receipts  admitted  in  evi- 
dence is  not  in  fact  a  copy  of  them,  but  falls  far  short  of  it.  It  is 
barely  a  brief  abstract  from  them,  showing  the  amount  of  the  sum 
of  money  mentioned  in  each,  without  designating  on  what  account 
or  for  what  purpose  the  money  was  received :  and  I  am  inclined  to 
think  could  not  legally  have  been  admitted  as  a  substitute  for  the 
original  if  they  had  been  lost  or  destroyed.  It  no  doubt  might  have 
been  used  by  the  witness  George  Duchman  to  refresh  his  memory  in 
proving  the  contents  of  the  receipts,  had  he  been  called  on  for  that 
purpose  in  case  of  their  loss  or  destruction  ;  and  this  is  the  most,  as  it 
appears  to  me,  that  could  have  been  made  of  it. 

There  is  nothing  in  the  two  remaining  errors  which  have  been  as- 
signed. The  judgment  of  the  court  below  is  therefore  reversed  on 
the  first  error  assigned ;  and  a  venire  facias  de  novo  awarded. 

Judgment  reversed,  and  venire  facias  de  novo  awarded. 


JVw.  1832.]  OF  PENNSYLVANIA.  255 


Hess's  Appeal. 

n  appeal  from  the  decree  of  the  orphan's  court,  ordering  a  sale  of  real  estate  for 
the  payment  of  debts,  is  a  supcrscdcas  to  such  sale. 

APPEAL  from  the  orphan's  court  .of  Lancaster  county. 

This  is  an  appeal  from  a  decree  of  the  orphan's  court  of  the  county 
of  Lancaster,  confirming  a  sale  made  of  the  real  estate  of  John  Hess 
deceased,  by  his  administrators,  for  the  purpose  of  paying  his  debts  ; 
in  pursuance  of  a  decree  previously  made  by  the  same  court.  The  or- 
der for  the  sale  was  made  on  the  30th  day  of  December  1828,  direct- 
ing the  administrators  to  sell  on  the  24th  of  January  then  next  fol- 
lowing, and  to  make  report  of  the  same  to  the  court  on  the  third 
Monday  of  March  ensuing.  On  the  22d  day  of  January  1829,  two 
days  before  the  day  on  which  the  administrators  were  directed  to 
sell,  the  appellants  in  this  case,  who  were  the  heirs  of  the  deceased, 
by  their  guardian  entered  and  in  due  form  of  law  took  an  appeal, 
from  the  decree  of  the  orphan's  court  ordering  the  sale,  to  the  circuit 
cour'.,  where  it  was  affirmed ;  and  from  this  decree  of  the  circuit 
court,  an  appeal  was  taken  again  to  this  court,  where  the  decree  of 
the  circuit  court  was  affirmed.  After  the  appeal  was  taken  from 
the  order  of  the  orphan's  court  decreeing  the  sale,  and  while  it  was 
still  depending,  the  administrators  went  on  and  made  the  sale,  and 
reported  it  to  the  orphan's  court  agreeably  to  the  order.  Exceptions 
were  taken  and  filed  against  the  confirmation  of  the  sale  ;  and  among 
them  was  this  one ;  that  the  sale  was  made  after  the  appeal  was 
taken  from  the  decree  of  the  orphan's  court,  which  had  authorized 
it,  and  while  that  appeal  was  still  pending  and  undetermined.  The 
other  exceptions  were  either  not  supported  in  point  of  fact,  or  not 
tenable  in  law.  The  orphan's  court,  however,  overruled  them  all, 
and  confirmed  the  sale ;  and  it  is  from  this  decree  of  confirmation  of 
the  sale  that  this  appeal  was  taken. 

Champneys,  for  appellant,  cited  the  acts  of  1st  of  April  1811, 
sect.  2  ;  and  the  27th  of  March  1813,  sect.  9  ;  and  the  19th  of  April 
1794,  section  20;  and  contended  that  the  appeal  was  a  supersedeas. 
To  determine  that  it  was  not,  is  equivalent  to  a  determination  that 
no  appeal  from  a  decree  of  the  orphan's  court  can  be  taken  at  all ; 
for  the  land  once  sold,  and  the  title  made,  any  result  of  an  appeal 
was  ineffectual. 

Jenkins,  for  appellee.  The  decree  of  the  orphan's  court  was  not 
final  until  the  confirmation  of  the  sale  ;  this  appeal,  therefore,  was 


256  SUPREME  COURT  [Lancaster, 

[Hcss's  Appeal.] 

taken  too  soon  and  should  be  quashed.  But  upon  the  examination  of 
this  record,  the  court  will  find  nothing  wrong :  why  then  reverse  pro- 
ceedings thus  regular,  because  of  the  formal  reason  that  the  sale  was 
mude  after  an  appeal  1  If  the  court  be  now  of  opinion,  that  there 
was  no  ground  for  the  appeal,  they  will  not  reverse  the  decree.  4 
Serg.  <$•  Rawle  202  ;  2  Mad.  Chan.  455  ;  6  Serg.  #  Rawle  462 ;  4 
Dall.  160. 

Champneys,  in  reply.  The  difference  between  an  appeal  and  writ 
of  error  is,  that  error  lies  only  to  final  judgment ;  appeal  lies  to  inter- 
locutory decrees.  Both  operate  as  super  sedeas.  16  Serg.  4"  Rawle 
329. 

The  opinion  of  the  Court  was  delivered  by 

KENNEDY,  J. — To  support  this  sale  and  the  decree  of  confirmation 
by  the  orphan's  court,  it  has  been  contended  in  the  first  place,  that 
the  appeal  from  the  order  of  sale  was  not  a  supersedeas  to  the  execu- 
tion of  it ;  and  that  the  administrators  had  a  right,  if  they  chose,  to 
go  on  with  the  sale  notwithstanding,  taking  the  responsibility  of  it 
upon  themselves ;  and  if  it  turned  out  afterwards  that  the  order  for 
the  sale  should  be  affirmed  upon  the  appeal,  that  then  the  sale  would 
be  good,  whatever  might  have  been  the  effect  of  its  reversal.  This 
notion,  I  apprehend,  is  contrary  to  what  has  ever  been  considered  the 
effect  of  an  appeal  duly  and  regularly  taken  from  the  decree  or  judg- 
ment of  an  inferior  tribunal  or  court  to  a  superior.  The  effect,  if  not 
at  once  to  open  and  annul  such  decree  or  judgment  of  the  inferior 
tribunal  or  court,  so  that  the  proceedings  to  be  had  in  the  appellate 
jurisdiction  shall  begin  de  nouo,  has  at  least  been  to  stay  all  further 
proceeding  in  the  execution  of  it.  It  is  very  reasonable  that  it  should 
be  so,  or  otherwise  the  great  end  of  granting  to  the  party  the  right 
to  appeal,  would  in  many  cases  be  lost.  How,  for  instance,  could 
an  appeal  taken  from  a  sentence  of  death  avail  the  party  any  thing, 
if  the  sentence  may  notwithstanding  be  lawfully  executed  pending 
the  appeal.  It  may  be  said  that  this  is  an  extreme  case.  But  surely  it 
must  be  admitted  that  the  object  of  granting  the  right  of  appeal  in 
every  case  is  to  afford  the  party  an  opportunity  of  obtaining  relief 
from  the  execution  of  a  sentence,  order  or  judgment  that  is  illegal  or 
unjust ;  and  yet  if  such  sentence,  order  or  judgment  may  be  lawfully 
carried  into  effect  before  a  decision  shall  be  had  upon  the  appeal,  it 
is  very  apparent  that  the  primary  object  of  the  appeal  would  be  lost 
in  all  cases,  and  that  in  many,  if  not  in  the  most  of  them,  great  injury 
would  be  the  result,  for  which  no  adequate  compensation  could  be 
made  by  any  decision  that  could  possibly  be  given  upon  the  appeal. 

Even  in  the  case  now  under  consideration,  where  the  order  for  the 
sale  of  the  estate  was  held  on  the  appeal  to  be  lawful  and  just,  yet  it 
is  possible  that  the  appellants  may  have  sustained  a  serious  injury  on 
account  of  the  sale  having  been  made  while  the  appeal  was  depend- 
ing. It  being  finally  determined  that  the  property  must  be  sold,  it 


JVot>.  1832.]  OF  PENNSYLVANIA.  257 

[Hess's  Appeal.] 

then  became  the  interest  of  the  appellants,  that  the  highest  possible 
price  that  could  be  obtained  for  it  should  be  had.  But  the  circum- 
stance of  the  appeal  having  been  taken,  and  made  too,  under  the 
solemnity  of  an  oath,  may  reasonably  be  'supposed  to  have  created 
doubts  in  the  minds  of  some,  who  might  otherwise  have  been  dis- 
posed to  buy  the  property,  as  to  the  final  issue  of  the  appeal,  whether 
the  order  for  the  sale  would  be  affirmed  or  not;  and  consequently 
made  it  uncertain  with  them,  whether  they  would  get  it,  if  they  did 
bid  and  it  should  be  stricken  down  to  them;  and  as  nothing  but  the 
final  decision  upon  the  appeal  could  remove  such  doubts,  they  did  not 
bid  at  all,  although  disposed  to  give  a  much  higher  price  for  the  pro- 
perty than  it  was  sold  for. 

It  is  a  desideratum  with  all  who  wish  to  purchase  property,  to  be 
certain  and  assured  at  the  time  of  buying,  that  they  will  get  it  ac- 
cording to  the  terms  of  their  agreement,  so  that  they  may  make  their 
arrangements  accordingly,  and  not  be  disappointed.  Suspense,  doubt 
and  anxiety,  are  all  unpleasant,  and  there  are  few  who  do  not  wish 
to  avoid  having  their  minds  so  possessed.  Beside,  if  an  appeal  is 
not  to  be  considered  at  least  a  supersedeas  or  stay  to  the  execution 
of  the  sentence,  order  or  judgment  from  which  it  is  taken,  useless 
and  unnecessary  costs  must  often  be  incurred,  which  ought  to  be 
avoided  as  much  as  possible. 

It  has  in  the  next  place  been  urged  that  the  order  of  sale,  made 
by  the  orphan's  court,  was  merely  interlocutory  and  not  definitive ;  and 
therefore,  not  such  a  sentence  as  could  be  lawfully  appealed  from : 
and  as  the  appeal  from  it  was  not  authorized  by  law,  it  was  a  nullity 
and  could  have  no  legal  effect  or  operation  whatever  in  arresting  or 
staying  the  execution  of  the  decree  for  the  sale.  This,  perhaps, 
might  be  so,  if  the  order  for  the  sale  were  not  of  a  definitive  character, 
for  it  is  only  from  definitive  'sentences  or  judgments  passed  by  the 
orphan's  court,  that  the  right  of  appeal  is  given,  according  to  the 
9th  section  of  the  act  of  the  27th  of  March  1713.  But  it  appears  to 
me  that  the  order  of  sale  must  be  considered  a  definitive  sentence.  It 
was  a  judgment  of  the  orphan's  court,  condemning  the  property  to 
sale  without  any  further  hearing  to  be  had  on  the  subject,  and  nothing 
remained  to  be  done,  but  to  carry  it  fairly  into  execution.  It  was 
literally  a  decree,  by  force  of  which,  and  its  due  execution,  the  own- 
ers of  the  estate  were  to  be  divested  of  all  right  to  it.  Could  any 
'thing,  then,  in  its  nature  be  more  definitive?  And  if  it  had  been  er- 
roneous, I  think  that  the  most  appropriate  time  for  taking  the  appeal 
was  before  its  execution,  in  order  to  prevent  all  useless  expense  as  far 
as  practicable,  and  likewise  a  possible  sacrifice  of  the  property  for 
which  no  adequate  reparation  could  be  obtained  after  a  completion  of 
the  sale.  Such  orders  I  believe  have  been  generally  considered  as 
appealable  from.  It  was  so  looked  upon  in  the  present  case,  and 
sustained  without  objection,  and  acted  upon  both  by  the  circuit  court 
and  this  court,  as  if  it  had  been  rightfully  taken. 
2  H 


258  SUPREME  COURT  [Lancaster, 

[Hose's  Appeal.] 

Under  this  view  of  the  matter,  we  consider  the  sale  made  by  the 
administrators,  and  the  subsequent  confirmation  of  it  by  the  orphan's 
court,  erroneous,  and  both  are  therefore  set  aside  and  reversed. 

Decree  reversed. 


Stoever  against  Immell. 

An  order  of  the  court  approving  and  receiving  a  bond  from  a  surviving  trustee  of 
an  insolvent  debtor,  conditioned  tor  the  discharge  of  his  duty,  is  not  examinable  in 
the  supreme  court. 

A  proceeding  which  is  imperfect  when  the  act  of  assembly  under  which  it  was 
begun  expires,  cannot  be  perfected :  what  is  done  afterwards  is  void. 

APPEAL  from  the  common  pleas  of  Dauphin  county. 

In  1810,  Frederick  Stoever  was  dischargee!  as  an  insovent  debtor, 
and  Michael  Steckbeck,  Leonard  Immell  and  Anthony  Kelker  were  ap- 
pointed his  assignees.  In  1830,  the  creditors  applied  to  the  court  to 
permit  and  direct  a  bond  to  be  given  and  filed  by  Leonard  Immell, 
the  surviving  trustee,  conditioned  for  the  faithful  discharge  of  his 
duty,  which  was  objected  to,  and  the  objections  overruled  and  the 
bond  given,  from  which  order  the  administrators  of  Tobias  Stoever 
appealed,  and  removed  the  record  by  certiorari. 

Hopkins  and  Elder,  for  appellants,  cited  act  of  4th  April  1798. 
1  W.  Black.  451 ;  3  Burr.  1457 ;  6  Binn.  455 ;  6  Cra.  329  ;  7  Wheat. 
550 ;  1  Cra.  282 ;  4  Dall  378 ;  4  Yeates  392 ;  10  Serg.  <$•  .Rawle 
436 ;  11  Serg.  $  Rawle  325 ;  5  Serg.  #  Rawle  549. 

Fisher  and  J.  A.  Fisher,  contra,  were  stopped  by  the  court 

PER  CURIAM. — If  the  proceeding  were  imperfect  when  the  act 
under  which  it  was  begun  expired,  what  has  been  done  since  is  sim- 
ply void,  and  needs  no  reversal.  It  has,  however,  not  been  thought 
to  be  directly  examinable  here.  The  books  show  no  instance  of  it, 
and  we  are  satisfied  the  present  attempt  cannot  be  sustained. 

Writ  of  certiorari  quashed. 


Mm.  1832.]  OF  PENNSYLVANIA.  259 


Fisher  against  Kean. 

In  an  action  upon  articles  of  agreement  for  the  purchase  and  sale  of  land,  the  jury 
found  a  certain  sum  due  and  payable  by  the  defendant,  and  another  sum  not  due 
until  the  death  of  a  widow,  but  a  lien,  and  chargeable  upon  the  land;  executions  hav- 
ing issued  on  the  judgment,  the  money  made  by  the  sale  of  other  land,  and  brought 
into  court  for  appropriation  ;  the  court  ordered  the  money  payable  presently  by  the 
terms  of  the  verdict,  to  be  paid  to  the  plaintiff,  that  which  was  payable  upon  the 
death  of  the  widow  to  be  paid  to  another  creditor  who  had  a  mortgage  on  the  land 
sold,  and  that  mortgage  to  stand  for  the  use  of  the  plaintiff  pro  tanto.  add,  that  such 
decree  and  order  is  the  subject  of  a  writ  of  error,  and  is  erroneous. 

A  verdict  is  not  vitiated  by  the  finding  of  superfluous  matter  by  a  jury.  It  is  often 
proper  and  necessary  that  a  jury  should  state  in  their  verdict  the  grounds  on  which 
their  verdict  is  founded. 

The  lien  on  land  which  a  widow  has  for  her  interest,  by  the  intestate  laws,  is  not 
divested  by  a  sheriff's  sale  of  that  land,  upon  a  judgment  whose  lien  was  subse- 
quently obtained. 

WRIT  of  error  to  the  special  court  of  Dauphin  county. 

This  was  a  case  of  appropriation  of  money,  made  upon  a  judgment 
and  execution,  at  the  suit  of  Jane  Kean,  administratrix  with  the  will 
annexed  of  John  Kean,  Esq.,  against  George  Fisher,  in  which  the 
following  facts  gave  rise  to  the  questions  discussed  and  determined. 

John  Hamilton  died  in  1793  or  1794,  possessed  of  considerable  real 
estate  in  Dauphin  county,  leaving  six  children,  of  whom  the  plaintiff 
was  one.  She  intermarried  with  John  Kean,  Esq.  On  .a  petition 
to  the  orphan's  court,  an  inquest  was  awarded  to  divide  his  lands 
among  his  children.  As  it  consisted  of  several  tracts  of  land  and 
houses,  the  inquest  found  it  would  bear  division  into  several  parts, 
and  appraised  each  part.  The  sons  having  declined  to  take  at  the 
appraisement,  John  Kean,  in  right  of  his  wife,  appeared,  and  accepted, 
among  other  parts,  a  tract  of  land  near  Harrisburgh,  which  was  de- 
creed to  him  by  the  orphan's  court,  on  his  paying  their  respective 
portions  to  the  other  heirs  of  John  Hamilton,  Esq.,  and  a  widow,  who 
intermarried  with  a  Mr  Mitchel,  and  is  again  a  widow,  and  is  yet 
living.  After  the  trusj  in  question  had  been  allotted  to  John  Kean, 
he,  by  articles  of  agreement,  dated  in  the  year  1804,  contracted  to 
sell  the  land  to  George  Fisher,  and  was  to  make  a  title,  clear  of  in- 
cumbrances,  in  the  spring  of  1805:  1800  dollars  of  the  purchase 
money  was  paid;  and  in  1806  all  the  heirs  released  to  John  Kean; 
but  the  widow  did  not ;  and  the  valuation  of  her  third  portion  was 
1401  dollars  and  67  cents.  The  deed  was  at  length  executed,  and  a 
dispute  arose  about  the  sufficiency  of  it,  and  it  and  a  bond  of  indem- 
nity were  delivered  to  Mr  Fisher  for  examination  ;  and  though  he 
often  said  he  would  not  accept  of  them,  and  actually  returned  the 
bond  of  indemnity  to  one  of  the  sureties  in  it,  yet  he  never  re- 
turned the  deed  ;  and  many  years  afterwards  showed  it  to  a  gentle- 


260  SUPREME  COURT  [Lancaster, 

[Fisher  v.  Kean.] 

man  to  whom  he  mortgaged  certain  lands,  and  who,  without  con- 
sulting Mr  Fisher,  put  it  on  record.  Mr  Fisher  entered  into  possess- 
ion in  1805;  and  John  Kean,  never  having  got  any  bonds  from  Mr 
Fislier,  sued  him  on  the  articles  of  agreement.  John  Kean  became 
insolvent,  and  assigned  to  certain  persons,  in  trust  to  pay  his  debts ; 
he  made  a  will,  the  executors  renounced,  and  his  widow  administered 
with  the  will  annexed,  revived  the  suit  against  Mr  Fisher,  and  gave 
notice,  by  a  paper  filed,  that  she  claimed  the  debt  and  sum  demanded 
in  this  writ,  for  the  use  of  the  legatees  and  creditors  of  John  Kean 
deceased. 

On  the  trial,  the  jury  found  a  verdict,  which  is  recorded  as  follows : 

"We,  the  jurors  in  the  present  case,  do  find  the  sum  of  1875  dol- 
lars and  60  cents  due  unto  the  plaintiff,  at  the  institution  of  the  suit, 
including  interest,  to  this  day,  after  deducting  1401  dollars  and  67 
cents,  principal  of  a  sum,  and  interest  on  the  same  sum  from  the  1st 
of  April  1813  to  this  present  time.  The  said  sum  of  1401  dol- 
lars and  67  cents,  to  remain  in  the  hands  of  defendant,  George 
Fisher,  Esq.,  during  the  natural  life  of  the  late  John  Hamilton's 
widow ;  and  at  her  death,  or  upon  her  release,  to  be  paid  over  to  the 
plaintiff;  the  payment  of  which  to  be  secured  by  remaining  a  lien  on 
the  land." 

On  this  verdict,  according  to  the  practice,  judgment  was  entered 
by  entering  the  word  "judgment ;"  which  enables  the  party  to  draw 
out  at  length  the  proper  and  legal  judgment,  but  amounts  to  no  more 
than  such  judgment  as  the  party  has  a  right  to. 

A  fieri  facias,  and  subsequently  a  venditioni  exponas,  issued  on  this 
judgment,  and  a  property,  different  from  the  tract  above  mentioned, 
was  sold  for  9750  dollars.  When  the  money  was  brought  into  court, 
the  court  ordered  it  to  be  distributed  by  the  following  decree.  "  The 
court  order  the  money  to  be  paid  over  to  the  assignees  of  John  Kean, 
under  the  act  of  13th  of  March  1812,  and  the  supplement  thereto,  on 
the  terms  and  conditions  specified  in  the  verdict;  the  sum,  according  to 
the  verdict,  to  be  paid  presently,  and  interest  to  the  18th  of  January 
1831,  the  time  of  acknowledging  the  deed,  55  dollars  and  31  cents  ; 
making  in  all  1930  dollars  and  91  cents,  which  is  to  be  paid  over 
according  to  the  above,  decree.  The  residue,  to  wit  1401  dollars  and 
67  cents,  is  ordered  to  be  paid  over  to  J.  M.  Forster,  Esq.,  attorney 
for  Jacob  Ridgway,  on  his  judgment  and  mortgage,  and  the  said 
judgment  and  mortgage,  so  far  as  paid  thereby,  to  remain  a  lien  in 
favour  of  the  assignees  of  John  Kean  in  this  suit,  as  a  security  to  them 
pro  tanto,  they  having  a  previous  lien,  and  the  said  lien  to  be  assigned 
accordingly."  There  were  other  directions  as  to  the  residue,  not 
material  in  this  case.  Jane  Kean  and  Mr  Fisher  appealed  from  this 
decree ;  but,  on  reflection,  Mr  Fisher  took  this  writ  of  error ;  conceiv- 
ing this  last  decree  to  be  an  alteration  of  the  judgment  on  the  verdict, 
not  warranted  by  the  verdict  and  by  the  law. 

Montgomery  and  JVorris,  for  plaintiff  in  error. 


JVoi>.  1832.]  OF  PENNSYLVANIA.  261 

[Fisher  v.  Kean.] 
W.  Hopkins,  for  defendant  in  error. 

The  opinion  of  the  Court  was  delivered  by 

HUSTON,  J. — All  parties  seem  to  agree  that  the  verdict  and  the 
proper  judgment  on  it,  and  the  executions  and  sale  remain  undis- 
turbed. We  are  of  opinion,  that  in  this  case  the  writ  of  error  lies ; 
for  although  appeal  is  the  appropiate  remedy  for  mistake  in  the  dis- 
tribution of  money  raised  by  sheriff's  sale,  it  is  not  the  distribution  of 
the  money  which  is  complained  of.  The  execution  is  not  brought 
up  by  this  writ  of  error;  but  it  is  not  the  execution  which  the  plain- 
tiff in  error  wishes  to  reach ;  he  complains  of  that  part  of  the  decree 
which  directs  Ridgway's  mortgage  and  judgment  to  be  assigned  to 
the  plaintiff,  and  to  remain  a  lien  on  all  the  estate  of  G.  Fisher,  which 
considers  the  sum  of  1401  dollars  and  67  cents  as  found  for  the 
plaintiff,  and  nothing  to  do  but  issue  an  execution  for  it  on  the  widow's 
death.  The  act  of  assembly  had  made  that  sum  a  lien  on  the  spe- 
cific tract  appraised  and  no  other.  The  jury  and  court  could  not 
remove  it  from  that,  nor  could  they  in  this  case  extend  it  beyond 
that.  It  is  not  due  until  the  widow's  death ;  and  neither  verdict  nor 
judgment  can  be  for  a  sum  not  yet  due.  And  I  apprehend  the  fair 
construction  of  the  verdict,  so  far  from  finding  it  due,  finds  the  very 
reverse.  Let  us  attend  to  the  case.  The  plaintiff  claimed  nearly 
5000  dollars.  The  defendant,  among  other  objections  to  this  claim, 
showed  that  on  the  land  sold  to  him  there  was  a  specific  lien  by  posi- 
tive law  for  the  widow's  third  part  of  the  sum  at  which  that  tract  had 
been  valued,  amounting  to  1401  dollars  and  67  cents;  and  further, 
that  from  1813  he  had  been  charged  with  the  interest  on  that  sum, 
which  had  been  paid,  or  if  any  part  of  it  remained  unpaid,  it  could 
be  collected  by  distress  or  action  against  him.  The  jury  then  de- 
ducted this  sum  of  1401  dollars  and  67  cents  from  the  amount  of 
the  plaintiff's  demand,  as  it  stood  in  1813,  or  what  amounted  to  the 
same  thing,  and  found  a  verdict  for  plaintiff  for  1875  dollars  and  60 
cents.  If  the  jury  had  stopped  here,  and  given  no  explanation,  it 
might  have  been  contended  that  the  last  sum  was  all  that  they 
allowed  for  the  whole  of  the  plaintiff's  claim;  and  possibly  might 
have  barred  the  plaintiff  from  ever  recovering  any  thing  further.  To 
prevent  this,  they,  in  substance,  say,  We  find  1875  dollars  and  60 
cents,  and  leave  1401  dollars  and  67  cents  not  taken  into  our  verdict, 
being  the  widow's  third  part,  which  is  charged  on  the  land  by  the 
law ;  and  say  in  substance,  for  no  other  legal  meaning  can  be^put  on 
the  words,  "  which  is  to  remain  in  the  hands  of  G.  Fisher  during  the 
life  of  the  widow,  &c."  The  direction  that  it  should  be  secured  by 
remaining  a  lien  on  the  land,  amounted  to  nothing ;  the  law  had 
placed  it  there  and  made  it  a  lien  beyond  the  control  of  courts  and 
juries,  until  the  widow  died  or  released  it.  Courts  will  always  so 
mould  and  construe  a  verdict  as  to  make  it  legal  if  possible,  and 
never  put  a  construction  otherwise,  if  the  words  will  bear  it.  It  is 
not  only  allowable,  but  proper,  and  often  necessary  to  justice,  that  a 


262  SUPREME  COURT  [Lancaster, 

[Fisher  v.  Kcan.] 

jury  should,  beside  finding  the  issue,  state  the  ground  on  which  they 
decided.  1  Peters' 8  C.  C.  Rep.  72.  After  finding  the  issue,  the 
verdict  is  not  vitiated  by  finding  or  stating  something  superfluous. 
8  Serg.  <$•  Rawle  441.  Such  finding  and  stating  what  they  did  not 
take  into  view  occurs  constantly  in  trials  ;  and  if  the  jury  find  all 
the  plaintiff  is  then  entitled  to,  neither  he  nor  the  defendant  has  any 
cause  of  complaint.  The  only  judgment,  then,  which  could  be  en- 
tered on  this  verdict,  was  for  1875  dollars  and  60  cents.  Two  judg- 
ments, on  the  same  demand,  one  to  be  levied  presently,  and  the 
other  in  future,  and  contingent,  are,  perhaps,  not  allowable  ;  though 
a  verdict  for  a  sum,  and  stay  of  execution  till  an  act  be  done,  is,  in 
our  equitable  proceedings,  not  unusual.  The  sum  of  1401  dollars 
67  cents,  raised  by  the  sale  of  the  defendant's  land,  on  which  that 
was  not  a  charge,  went,  without  dispute,  towards  payment  of  a  lien 
which  bound  the  property  sold  ;  and  it  went  so  because  the  plaintiff 
had  no  claim  to  it. 

If  the  tract  on  which  1401  dollars  and  67  cents  was  charged,  had 
been  levied  on  and  sold,  it  must  have  been  subject  to  the  payment 
of  the  interest  of  this  sum,  yearly,  to  the  widow ;  for  that  is  a  kind 
of  lien  from  which  land  cannot  be  discharged  by  sheriff's  sale ;  unless 
where  it  is  sold  on  a  judgment  or  mortgage,  prior  to  the  widow's  claim. 
We  think  there  is  error  in  that  part  of  the  decree  which  directs  "  the 
judgment  and  mortgage  of  Jacob  Ridgway,  as  far  as  1401  dollars 
and  67  cents,  to  remain  a  lien  in  favour  of  the  assignees  of  John 
Kean,  in  this  suit,  as  a  security  to  them  pro  tanto  ;  and  that  the  said 
mortgage  and  judgment  be  assigned  accordingly."  It  is  true,  that 
the  report  of  arbitrators,  prior  to  Ridgway's  mortgage  and  judgment, 
gave  the  plaintiff  in  this  cause  a  lien  prior  to  Ridgway's  ;  but  it  is 
also  true  that  this  verdict  settles  the  amount  of  that  lien  to  be  1875 
dollars  and  60  cents.  The  plaintiff,  however,  need  not  be  alarmed  : 
if  Jacob  Ridgway  should  proceed  to  sell  the  property  on  which  this 
1401  dollars  and  67  cents  is  charged,  he  must  sell  subject  to  this 
lien  ;  the  purchaser  must  take  subject  to  it ;  and  must  pay  the  inter- 
est to  the  widow,  during  her  life,  and  at  her  death  pay  the  principal 
to  the  heirs  of  John  Hamilton,  or  their  assignees ;  and,  it  seems,  the 
plaintiffs  are  such  assignees.  They  have,  then,  a  lien  for  this  sum 
prior  to  Mr  Ridgioay's,  and  better,  and  which  must  become  effectual, 
though  many  years  may  elapse  first. 

We,  then,  order  judgment  on  the  verdict  for  1875  dollars  and  60 
cents  ;  and  the  residue  of  the  verdict  is  merely  explanatory  of  the 
principles  on  which  the  jury  founded  their  verdict;  and  the  sum  of 
1401  dollars  and  67  cents  is  no  otherwise  affected  by  the  verdict, 
than  to  show  that  it  was  not  included  in  this  finding,  and  remains 
as  the  law  placed  it. 


JVbv.  1832.]  OF  PENNSYLVANIA.  263 


Rees  against  Berryhill. 

The  decision  of  the  common  pleas  confirming  a  sheriff's  sale,  and  ordering  the 
acknowledgement  of  the  deed  to  the  purchaser,  is  not  the  subject  of  a  writ  of  error. 

ERROR  to  the  common  pleas  of  Dauphin  county. 

The  life  estate  of  Jeremiah  Rees,  in  a  house  and  lot,  was  levied  and 
sold  upon  a  fieri  facias  at  the  suit  of  John  Berryhill,  assignee  of 
Samuel  Jlgnew  ;  and  upon  the  sheriff's  offering  the  deed  to  the  pur- 
chaser for  acknowledgement,  exceptions  were  taken  to  the  sale. 
Upon  argument,  the  court  overruled  the  exceptions,  and  ordered  the 
deed  to  be  acknowledged,  whereupon  a  writ  of  error  was  sued  out. 

Elder,  for  plaintiff  in  error. 

Douglass  and  Foster,  for  defendant  in  error,  whom  the  court  de- 
clined to  hear. 

PER  CURIAM. — This  is  an  attempt  to  bring  before  this  court  the 
propriety  of  the  acknowledgement  of  a  sheriff's  deed  in  the  court  be- 
low, which  can  not  be  done.  As  therefore  the  matter  assigned  is 
not  the  subject  of  a  writ  of  error,  we  can  take  no  notice  of  it. 

Judgment  affirmed. 


Light  against  Light. 

A  wife  may  file  her  bill  for  a  divorce,  &  vinculo  matrimonii,  under  the  act  of  1815, 
or  for  alimony,  under  that  of  1817,  at  her  election. 

CERTIORARI  to  the  common  pleas  of  Lebanon  county. 

This  case  originated  in  a  petition  of  Barbara  Light  to  be  divorced 
&  vinculo  matrimonii  entered  into  with  her  husband,  Martin  LAght. 
The  causes  set  out  were  adultery  by  the  husband,  and  cruel  and 
barbarous  treatment  of  the  petitioner,  such  as  to  force  her  to  leave  his 
house.  The  facts  having  been  traversed,  a  declaration  was  filed ; 
to  which  the  respondent  pleaded  not  guilty.  The  only  question  deter- 
mined here  arose  out  of  the  following  points,  put  to  the  court  below 
by  the  counsel  for  the  respondent :  the  charge  of  adultery  having  been 
abandoned  by  the  libellant. 


264  SUPREME  COURT  [Lancaster, 

[Light  v.  Light.] 

1.  That  the  only  charge  of  which  the  jury  have  to  inquire  is,  that 
.Murtin  Light,  by  his  cruel  and  barbarous  treatment,  has  endangered 
the  life  of  his  wife  Barbara,  and  offered  such  indignities  to  her  per- 
son, as  to  render  her  condition  intolerable  and  burthensome,  and 
thereby  forced  her  to  withdraw  from  his  house  and  family;  and  that 
this  charge,  under  the  act  of  the  13th  of  March  1817,  is  only  cause 
for  a  divorce  from  bed  and  board,  and  for  alimony  ;  and  that  the  last 
clause  in  the  first  section  of  the  act  of  the  13th  of  March  1815,  mak- 
ing this  charge  of  cruelty  and  barbarous  treatment  a  cause  for  a  di- 
vorce from  the  bonds  of  matrimony,  is  repealed  by  the  supplement 
passed  the  26th  of  February  1817. 

2.  That  the  court  is  respectfully  requested  to  charge  the  jury,  that 
cruel  and  barbarous  treatment,  endangering  his  wife's  life,  or  offering 
such  indignity  to  her  person  as  to  render  her  condition  intolerable, 
and  life  burthensome,  and  thereby  forcing,  her  to  withdraw  from  her 
husband's  house  and  family,  is  no  longer  a  cause  for  a  divorce  from 
the  bonds  of  matrimony. 

The  court  answered  these  points  in  the  negative ;  and  the  jury 
found  a  verdict  for  the  libellant ;  upon  which  the  court  decreed  a 
divorce  and  separation  of  the  parties  from  the  bonds  of  matrimony. 
The  respondent  appealed,  and  sued  out  a  certiorari  to  remove  the 
record.  The  answer  to  the  respondent's  points  was  the  assignment 
of  error. 

JVoms  and  Wideman,  for  appellants. 
Fisher,  for  appellee. 

PER  CURIAM. — We  are  satisfied  that  the  construction  put  upon 
these  two  acts  by  Mr  Justice  Duncan,  in  Smith  v.  Smith,  3  Serg.  fy 
Rawle  248,  is  the  true  one ;  to  wit  that  the  wife  may  file  her  bill 
under  that  of  1815,  for  a  divorce  &  vinculo,  or  that  of  1817  for  alimony, 
at  her  election. 

Judgment  affirmed. 


JVov.  1832.]  OF  PENNSYLVANIA.  265 


Long  against  Long. 

Upon  an  amicable  partition  of  lands  between  tenants  in  common,  or  a  sale  founded 
upon  such  partition,  by  which  money  is  payable  to  one  of  the  tenants  in  common, 
an  action  may  be  maintained'by  him  for  its  recovery  against  another  tenant  in  com- 
mon, who  took  or  purchased  the  land,  with  notice  to  a  terre  tenant,  to  whom  the 
land  had  been  subsequently  conveyed. 

In  such  an  action,  the  defendant,  who.  took  or  purchased  the  land,  would  not  be  a 
competent  witness  to  establish  the  liability  of  the  terre  tenant. 

WRIT  of  error  to  the  district  court  of  the  city  and  county  of 
Lancaster.  Bradford,  president. 

This  was  an  action  of  debt  by  Abraham  Long  against  Benjamin 
Long,  with  notice  to  Conrad  Zeigler  terre  tenant,  which  arose  out 
of  the  following  facts. 

Harman  Long  died  seised  of  a  large  real  estate,  leaving  a  paper 
which  purported  to  be  his  will,  and  about  the  validity  of  which  his 
heirs  at  law  disputed.  This  resulted  in  a  written  agreement  between 
them  all,  some  of  them  being  of  age,  others  minors  who  were  repre- 
sented by  guardians,  and  others  married  daughters,  with  whom  their 
husbands  joined,  by  the  provisions  of  which  agreement  a  valuation  and 
partition  of  the  whole  estate  was  to  be  made  by  certain  persons  ap- 
pointed for  that  purpose,  and  the  heirs  were  to  take  or  refuse  to  take 
at  such  valuation ;  if  any  part  should  not  be  taken  by  any  one,  a  sale 
of  it  was  provided  for.  The  partition  and  valuation  was  made,  one 
of  the  parts  all  refused  to  take ;  it  was  sold,  and  purchased  by  Benja- 
min Long  the  defendant,  and  of  the  purchase  money  there  was  due 
and  payable  to  Abraham  Long  the  plaintiff  760  dollars.  This  land 
was  afterwards  sold  by  the  sheriff  as  the  property  of  Benjamin  Long, 
and  purchased  by  Conrad  Zeigler.  Notice  was  given  at  the  time  of 
sale  that  it  was  selling  subject  to  this  claim  of  Abraham  Long,  and 
it  was  struck  down  to  Conrad  Zeigler  at  5410  dollars,  of  which  he 
retained  800  dollars  to  meet  this  claim  of  Abraham  Long,  which  sum 
was  still  in  his  hands. 

The  plaintiff  offered  to  establish  these  facts  by  the  testimony  of 
several  witnesses,  but  the  court  having  been  of  opinion,  that  the 
action  could  not  be  maintained,  rejected  all  the  evidence,  which  was 
the  subject  of  several  bills  of  exception. 

Benjamin  Long  himself  was  offered  as  a  witness,  and  rejected  on 
the  same  ground,  and  also  that  of  incompetency.  A  verdict  and 
judgment  were  rendered  for  the  defendant. 

Wright,  for  plaintiff  in  error. 
Hopkins,  contra. 
2  i 


266  SUPREME  COURT  [Lancaster, 

[Long  T.  Long.] 

The  opinion  of  the  Court  was  delivered  by 

KENNEDY,  J. — This  is  on  action  of  debt,  brought  by  Samuel  Long, 
for  his  own  use,  in  the  name  of  Abraham  Long,  against  Benjamin 
Long,  with  notice  to  Conrad  Zeigler.  The  bills  of  exception,  and 
the  errors  assigned,  raise  two  questions. 

1.  Whether  the  action  can  be  maintained  so  as  to  entitle  the  plain- 
tiff to  a  judgment,  to  be  levied  out  of  the  land  in  the  possession  of 
Conrad  Zeigler,  which  he  bought  at  sheriff's  sale  as  the  property  of 
Benjamin  Long,  the  defendant  in  this  action,  subject  to  the  payment 
of  the  debt  herein  claimed. 

2.  Whether  Benjamin  Long,  the  defendant,  was  a  competent  wit- 
ness for  the  plaintiff,  on  the  trial  of  the  issue  between  him  and  Con- 
rad Zeigler,  the  terre  tenant. 

From  the  naturoof  the  plaintiff's  claim,  as  set  out  by  himself,  it 
was  certainly  necessary  to  prove,  that  the  debt  was  due,  and  owing 
to  Abraham  Long  by  Benjamin  Long,  under  a  valid  and  binding  con- 
tract ;  and  that  it  was  such  as  created  a  lien  upon  the  land  for  the 
payment  of  it,  of  which  land  Zeigler  had  become  the  terre  tenant ; 
and  that  he  had  full  notice  of  the  lien  at  the  time  he  bought.  We 
think,  that  the  evidence  set  forth  in  the  several  bills  of  exception, 
which  have  been  made  the  ground  of  the  errors  assigned  in  this  case, 
tended  to  show  all  this,  and,  therefore,  ought  to  have  been  received. 
Why  the  court  below  rejected  the  testimony,  does  not  distinctly  ap- 
pear upon  the  record  ;  but  it  is  said,  that  it  was  because  they  thought 
that  this  action  could  not  be  supported  for  the  purpose  of  making  the 
land  in  the  hands  of  Zeigler  liable  for  the  payment  of  the  debt.  If 
such  was  the  opinion  entertained  by  the  court  below,  we  think  it 
was  erroneous.  Taking  all  for  true,  which  the  plaintiff  offered  to 
prove,  there  can  be  no  doubt,  but  that  the  debt  claimed,  was  justly 
owing  to  him  by  Benjamin  Long  ;  and  that  he  had,  according  to  the 
terms  of  the  contract,  a  double  security  for  the  payment  of  it :  first 
in  the  personal  responsibility  of  Benjamin  Long ;  and  next,  in  a  lien 
upon  the  land  purchased  by  him.  It  has,  however,  been  objected  to 
the  arrangement  or  agreement  out  of  which  this  debt  has  arisen, 
that  JMartin  and  Abraham  Long,  two  of  the  persons  interested  in  the 
lands  which  were  the  subject  matter  of  the  arrangement,  which 
was  an  agreement  of  compromise  of  family  disputes  and  quarrels,  and 
therefore  much  to  be  favoured,  were  minors  at  the  time ;  and  that, 
therefore,  they  were  incapable,  either  by  themselves  or  their  guard- 
ians, of  becoming  parties  to  it,  and  so  to  dispose  of  their  rights  in  the 
land.  Admitting  that  these  minors  were  incapable  of  binding  them- 
selves, or  of  being  bound  by  their  guardians  for  such  purpose,  still 
the  contract,  for  reasons  which  will  appear  in  the  sequel,  was  not 
void,  but  at  most  only  voidable  ;  and  the  other  contracting  parties 
who  were  of  full  age  were  absolutely  bound  by  it,  and  could  only  be 
released  by  the  consent  of  all,  or  by  those  infants  taking  advantage 
of  their  infancy,  and  making  it  a  plea  against  the  fulfilment  of  the 
agreement  upon  their  part,  when  they  came  of  full  age.  But  instead 


JVbt>.  1832.]  OF  PENNSYLVANIA.  267 

[Long  v.  Long.] 

of  doing  this,  the  evidence  offered  by  the  plaintiff,  and  rejected  by  the 
court,  was,  to  prove,  inter  alia,  that  these  infants,  after  their  arrival 
at  full  age,  had  complied  with,  and  performed  the  agreement  in 
every  respect ;  and  that  Abraham,  who  is  the  nominal  plaintiff  in 
this  case,  after  he  was  of  full  age,  and  before  the  bringing  of  this 
suit,  executed  and  tendered  a  release  of  his  right  and  interest  to  and 
in  the  land,  to  Zeigler  the  terre  tenant.  This  was  all  that  was  want- 
ing to  make  his  title  to  the  land,  which  he  then  had  and  still  has  in 
possession,  perfect.  And  if  it  be  true,  as  the  plaintiff  further  offered 
to  prove,  that  Zeigler  bought  the  land,  expressly  subject  to  the  pay- 
ment of  this  money,  upon  Abraham's  effectually  releasing  his  right 
and  title  to  it ;  why  should  Zeigler  not  either  pay  the  money,  or  suf- 
fer the  land  to  be  sold  for  it  1  Upon  every  principle  of  honour  and 
justice,  he  ought  to  feel  himself  bound  to  do  so,  rather  than  suffer 
Benjamin  Long  to  lose  any  thing  on  account  of  it. 

If  the  right  of  the  plaintiff  to  demand  and  recover  the  money  claimed 
in  this  suit  were  to  be  made  manifest,  as  the  plaintiff  by  his  proofs 
proposed,  he  most  unquestionably  ought  to  have  a  remedy  for  the 
recovery  of  it.  For  it  is  a  rule  of  our  law,  that  wherever  it  confers  a 
right,  it  will  afford  a  remedy  by  an  action  of  some  kind  ;  and  the 
right  being  once  clearly  established,  it  belongs  to  the  courts  to  adopt 
a  suitable  remedy.  3  Black.  Com.  123  ;  1  Salk.  21  ;  6  Mad.  54  ; 
Per  Lord  Kenyan,  Chief  Justice,  1  East  226  ;  1  Chitty,  PI  83. 

The  action  adopted  by  the  plaintiff  as  a  remedy  here  is  debt ;  and 
is  it  not,  I  would  ask,  a  suitable  one?  It  is  money  that  is  claimed  to- 
be  due,  and  sought  to  be  recovered  in  this  case;  and  debt  is  a  more 
extensive  remedy  for  the  recovery  of  money  than  assumpsit,  or  per- 
haps any  other  form  of  action  ;  for  it  lies  to  recover  money  due  upon 
legal  liabilities,  or  upon  simple  contracts,  express  or  implied,  whether 
verbal  or  written ;  and  upon  contracts  under  seal  or  of  record  ;  and  on 
statutes  by  a  party  grieved,  or  a  common  informer,  whenever  the 
demand  is  for  a  sum  certain,  or  is  capable  of  being  reduced  to  a  cer- 
tainty, &c.  1  Chitty,  PI.  101. 

Where  an  annuity  or  rent  is  charged  upon  lands  of  the  testator  by 
his  will,  after  his  death  an  action  of  debt  will  lie  in  favour  of  the 
legatee  to  recover  it,  as  often  as  it  shall  be  in  arrear  and  unpaid, 
against  those  who  shall  have  succeeded  to  the  possession  of  the 
lands,  and  have  become  the  pernors  of  the  profits  thereof.  Dupa 
v.  Mayo,  I  Saund.  282.  The  liability  of  the  pernors  of  the  profits 
in  this  case  does  not  arise  ex  contractu,  but  is  cast  upon  them  by  ope- 
ration of  law  upon  their  acts  and  conduct,  in  having  taken  possess- 
ion of  the  land  and  received  the  profits  of  it,  which  were  the  fund 
appropriated  by  the  testator  in  his  will  for  the  payment  of  the  annuity 
or  the  rent.  So  a  legacy  consisting  of  a  gross  sum  of  money,  given 
and  charged  by  a  testator  upon  his  land  lying  in  this  state,  may  be 
recovered  in  an  action  of  debt,  to  be  brought  against  the  terre  tenant 
with  notice  to  the  executors.  The  judgment,  however,  to  be  ren- 
dered in  such  case  would  be  for  the  amount  of  the  legacy,  to  be 


268  SUPREME  COURT  [Lancaster, 

[Long  v.  Long.] 

levied  only  out  of  the  land  upon  which  it  was  charged.  An  action 
of  ejectment  was  at  one  time  held  to  lie  by  some  of  our  courts  in 
this  state,  and  resorted  to  occasionally,  as  a  remedy  by  legatees  whose 
legacies  were  charged  by  the  testators  upon  the  real  estate.  But  of 
late,  the  action  of  debt  seems  to  be  the  remedy  that  has  been  finally 
adopted,  and  that  is  now  considered  by  this  court  as  the  most  appro- 
priate to  promote  the  intention  of  the  testator,  and  to  secure  to  the 
legatee  his  right.  This  has  been  devised  and  adopted  from  necess- 
ity, in  order  to  prevent  a  failure  of  justice. 

Upon  similar  principles,  and  from  a  like  necessity,  we  think,  then, 
that  if  the  plaintiff  here  shall  make  out  by  proof  the  facts  of  his  case 
as  he  proposed,  to  the  conviction  of  the  jury,  that,  in  law,  he  would 
be  entitled  to  a  judgment  for  the  amount  of  his  debt,  to  be  levied  out 
of  the  land  upon  which  it  was  charged,  and  subject  to  which  Zeig- 
ler  purchased. 

It  was  contended  upon  the  argument  of  the  case,  that  the  lien 
which  is  claimed  to  exist  upon  the  land  in  the  possession  of  Zeigler, 
according  to  the  evidence  that  was  offered  to  be  given  of  it,  origin- 
ated in,  and  grew  out  of  a  parol  contract;  that  such  a  contract  is 
altogether  insufficient  in  law  to  create  a  lien  upon  real  estate.  That 
it  would  not  only  be  contrary  to  the  statute  against  frauds  and  per- 
juries, but  repugnant  to  the  whole  policy  of  our  law,  which  repro- 
bates all  liens  upon  lands  or  real  estate  which  cannot  be  placed  upon 
public  record. 

Whether  a  lien  can  in  any  case  be  created  by  a  parol  contract 
upon  real  estate  or  not,  is  a  question,  as  I  conceive,  not  altogether 
necessary  to  be  decided  here.  For  the  agreement  between  the  par- 
ties for  the  partition,  valuation  and  disposition  of  the  estate,  was 
made  and  reduced  to  writing  and  signed  by  them.  And  again,  after 
the  agreement  had  been  carried  into  execution,  and  the  estate  had 
all  been  taken  and  disposed  of  by  the  parties  under  it,  it  was  pro- 
posed to  be  proved,  that  the  whole  had  been  ratified  and  confirmed 
by  releases  and  instruments  of  writing  executed  by  the  parties  respec- 
tively for  that  purpose.  More  than  this,  I  think,  could  not  have  been 
required  to  take  the  case  out  of  the  statute  of  frauds.  As  it  regards 
the  object  of  the  agreement,  whether  viewed  as  a  compromise  of  un- 
happy disputes  and  quarrels  which  had  arisen  between  members  of 
the  same  family,  or  as  the  severance  of  interests  in  an  estate  that 
was  held  in  coparcenary,  it  not  only  comports  with  the  policy  of  the 
law  to  promote  it,  but  is  entitled  to  its  greatest  favour.  In  all  cases 
the  law  most  willingly  lends  its  aid  when  asked  for,  to  make  par- 
tition of  estates  held  in  joint  tenancy  or  in  common,  and  will  compel 
a  division  of  the  property,  so  that  it  may  be  held  in  severally.  If, 
however,  it  will  not  admit  of  a  division,  and  the  object  cannot  be 
accomplished  in  that  way,  it  will  cause  an  appraisement  to  be  made, 
and  will  assign  it  to  one  of  the  parties,  he  paying  to  the  others  their 
respective  and  equal  proportions  of  the  valuation  money.  Wherever 
parties,  then,  have  done  amicably  what  the  law  would  have  com- 


JVot;.  1832.]  OF  PENNSYLVANIA.  269 

i 

[Long  v.  Long.] 

pelled,  it  will,  if  possible,  be  doubly  binding  upon  them.  It  will  even 
bind  an  infant;  as  if  he  make  equal  partition,  pay  rent  that  is  due,  or 
admit  a  copyholder  upon  a  surrender.  3  Burr.  Rep.  1801.  Indeed,  it 
is  a  general  rule,  that  whatsoever  an  infant  is  bound  to  do  by  law, 
the  same  shall  bind  him,  albeit  he  doth  it  without  suit  of  law.  Co. 
Lit.  172  a;  9  Co.  85  b.  Hence,  as  the  agreement  between  the  par- 
ties, out  of  which  the  claim  in  this  suit  has  grown,  wste  made  for  the 
purpose  of  dividing  and  parting  an  estate  which  before  was  held  by 
them  in  common,  so  that  each  of  them  might  get  and  hold  his  inte- 
rest therein  in  severally ;  it  was  to  do  substantially  nothing  more 
than  that  which  the  law  would  have  enforced :  I  have,  therefore, 
already  said  it  was  not  void  as  to  the  parties  to  it,  who  were  infants. 
It  has  been  held  in  this  state,  that  a  parol  partition  between  tenants 
in  common,  made  by  marking  a  line  of  division  on  the  ground,  and 
followed  by  a  corresponding  separate  possession,  is  good,  notwith- 
standing the  statute  against  frauds.  Ebert  v.  Wood,  I  Binn.  216. 
And  if,  in  order  to  equalize  the  partition  in  such  case,  one  of  the 
parties  had  agreed  to  pay  to  the  other  a  sum  certain  in  money,  or  a 
certain  rent  yearly  for  ever  out  of  his  part,  and  that  it  should  be  a 
charge  thereon,  I  am  inclined  to  believe  that  a  lien  or  charge  would 
be  thereby  created  upon  the  whole  of  the  land  taken  under  such  par- 
tition, by  the  party  agreeing  to  pay.  I  also  believe  that  the  law 
would  make  the  money  or  rent  a  lien  or  charge  upon  the  land,  with- 
out any  express  agreement  between  the  parties  to  that  effect.  In  this 
state,  our  statute  regulating  the  descent  of  real  estate,  passes  it  upon 
the  death  of  the  party,  dying  seised  and  intestate,  to  his  children 
equally,  to  hold  it  as  tenants  in  common,  and  may  be  considered  as 
placing  them  more  upon  the  footing  with  coparceners  in  England, 
than  any  other  description  of  tenants  of  real  estate.  Now  a  parol 
partition  between  coparceners  is  good,  and  a  rent  may  be  reserved  or 
granted  without  deed  for  equality  of  partition  out  of  the  land  descended; 
and  the  rent  so  reserved  or  granted  is  distrainable  of  common  right. 
lot.  sec.  252,  253;  Co.  Lit.  169  b;  16  Vin.  Mr.  tit.  Partition,  G. 
Owelty,  224.  And  if  the  rent  be  granted  generally  (without  say- 
ing out  of  what  land)  for  owelty  of  partition,  pro  residuo  terrce,  it 
shall  be  intended  out  of  the  purparly  of  her  who  grants  it.  Co.  Lit. 
169  b.  The  rent  in  this  case  is  not  a  rent  seek,  but  a  rent  charge, 
and  the  purparty  of  her  who  grants  it  shall  be  chargeable  with  a  dis- 
tress for  the  payment  of  it,  as  often  as  it  shall  become  payable,  and 
suffered  to  fall  in  arrear.  And  although  a  query  seems  to  be  added 
by  Sergeant  Hawkins  as  to  the  validity  of  such  parol  partition  since 
the  passage  of  29th  Car.,  still  I  apprehend  if  it  were  carried  into  full 
execution,  as  in  the  case  of  Ebert  v.  Wood,  already  cited,  that  would 
be  sufficient  to  take  it  out  of  our  statute  against  frauds,  or  even  in 
England.  See  Ireland  v.  Rittle  et  al.  1  Jltk.  542,  where  a  parol 
partition,  after  a  possession  had  been  taken  and  holden  under  it,  was 
held  good  and  confirmed.  See  also  1  Vern.  472.  Upon  the  same 
principle,  I  take  it,  a  gross  sum  of  money  may  be  agreed  to  be  paid  in 


270  SUPREME  COURT  [Lancaster, 

[Long  v.  Long.] 

making  a  parol  partition  by  the  one  to  the  other  for  owelty  of  par- 
ti i  ion,  and  may  be  charged  upon  the  purparty  of  the  one  agree- 
ing to  pay.  See  Clarendon  v.  Hornby,  I  P.  Wms  447.  And  in 
addition,  I  may  also  observe,  that  our  acts  of  assembly  passed,  on  the 
subject  of  partition,  the  llth  of  April  1799,  and  the  7th  of  April 
1807,  have,  in  accordance  with  this  principle,  made  the  valuation 
money  where  the  estate  will  not  admit  of  division,  or  the  money 
allowed  for  owelty  where  it  shall  be  divided  into  parts  of  unequal 
value,  liens  upon  the  whole  oftliat  part  of  the  estate  taken  by  the  party 
who  is  decreed  to  pay  the  money. 

As  this  cause  must  go  back  to  the  court  below  again  for  trial,  it  is 
proper  to  advise  the  plaintiff  that  we  consider  that  he  was  prema- 
ture in  going  on  to  trial  of  the  issue  with  Zeigler,  before  he  ob- 
tained a  judgment  against  Benjamin  Long,  or  a  plea  from  him,  upon 
which  he  could  have  joined  issue,  and  have  proceeded  to  a  trial 
against  both  by  the  same  jury.  By  pursuing  this  course,  the  plain- 
tiff will  have  to  establish  the  existence  of  his  debt  against  the  party 
with  whom  it  was  actually  first  contracted,  and  who  may  therefore 
be  reasonably  supposed  more  competent  to  defend  against  it  if  it  be 
unjust,  or  has  been  by  him  in  any  way  satisfied  ;  but  if  the  existence 
of  the  debt  be  fully  proved,  then  it  will  be  for  Conrad  Zeigler  to  show 
cause,  if  any  he  has,  why  it  should  not  be  levied  out  of  the  land  of 
which  he  claims  to  be  the  terre  tenant. 

The  next  question  is,  was  Benjamin  Long,  the  defendant,  a  com- 
petent witness  for  the  plaintiff]  We  think  he  was  not.  For  although 
he  was  a  party  on  the  record  to  the  suit,  and  was  called  to  give  evi- 
dence against  himself,  yet,  if  he  volunteered  to  do  so,  I  do  not  see 
any  sound  principle  upon  which  he  could  be  rejected  for  either  of 
of  those  circumstances ;  but  his  testimony  was  offered  not  merely  to 
establish  his  own  liability  to  pay  the  debt,  but  to  show  that  the  land 
which  had  become  the  property  of  Zeigler  was  liable  also  for  the 
payment  of  it.  It  is  very  obvious,  then,  as  the  plaintiff  in  his  de- 
claration has  stated  the  inability  of  Benjamin  Long  to  pay  this  debt, 
and  that  for  that  reason  he  wishes  to  have  payment  of  it  out  of  the 
land  in  the  hands  of  Zeigler,  and  therefore  has  made  him  a  party  to 
this  proceeding,  that  Benjamin  Long  ought  not  to  be  received  as  a 
witness  for  the  plaintiff  under  this  view  of  the  case,  because  his  evi- 
dence was  offered  to  throw  the  payment  of  the  debt  which  he  owed 
himself,  and  for  which  he  was  personally  responsible  to  the  plaintiff, 
upon  the  property  of  Zeigler,  to  whom  he  was  in  no  wise  answer- 
able, and  thus  relieve  himself  entirely  from  the  payment  of  it. 

The  judgment  of  the  court  below  is  reversed,  and  a  venire  facias 
de  novo  awarded. 


1832.]  OP  PENNSYLVANIA.  271 


Lvon  against  Marclay. 

* 

Proof  having  been  given  that  a  declaration  was  made  at  a  certain  time  and  place, 
by  a  party  ;  it  is  competent  for  the  adverse  party  to  prove,  by  another  witness,  that 
he  was  present,  and  did  not  hear  it. 

There  must  be  an  acknowledgement  of  an  existing  debt  within  six  years,  to  pre- 
vent the  operation  of  the  statute  of  limitations. 

Cases  of  trust,  not  to  be  reached  or  affected  in  equity  by  the  statute  of  limitations, 
are  those  technical  and  continuing  trusts,  which  are  not  at  all  cognizable  at  law,  but 
fall  within  the  proper,  peculiar,  and  exclusive  jurisdiction  of  courts  of  equity  :  it 
must  be  a  direct  trust,  belonging  exclusively  to  the  jurisdiction  of  a  court  of  equity, 
and  the  question  must  arise  between  the  trustee  and  cestui  que  trust. 

The  court  may,  at  any  time,  to  prevent  injustice,  or  for  special  reasons,  permit  a 
plea  to  be  put  in  nunc  pro  tune;  and  a  plea^wis  darrein  continuance,  although  a  con- 
tinuance has  intervened. 

A  plea^m's  darrein  continuance  waives  all  former  pleas. 

In  an  action  on  the  case  for  money  had  and  received,  a  release,  executed  after  suit 
brought,  may  be  given  in  evidence  upon  the  general  issue. 

The  parol  gift  of  a.  debt  to  another,  to  be  recovered  and  held  in  trust  for  an  illegi- 
timate child,  may  be  countermanded  at  any  time  before  the  trust  is  executed.  And 
in  an  action  by  the  cestui  que  trust  against  the  trustee,  to  recover  the  money,  a  re- 
lease by  the  donor  to  the  trustee,  executed  after  suit  brought,  may  be  given  in  evi- 
dence. 

FROM  the  district  court  of  Lancaster  county. 

In  the  court  below,  this  was  an  action  on  the  case,  for  money  had 
and  received,  by  Jacob  F.  Marclay  and  Ann  his  wife,  against  Tho- 
mas Icon's  executor. 

Elizabeth  L/yon  had  an  illegitimate  child,  for  which  Robert  Hamil- 
ton was  indicted,  convicted  and  sentenced.  He  gave  a  bond  to  the 
mother,  conditioned  for  the  payment  of  that  part  of  the  money 
which,  by  the  terms  of  the  sentence,  was  payable  to  her.  A  suit 
was  also  brought  by  Elizabeth  L/yon  against  Robert  Hamilton,  for  a 
breach  of  promise  of  marriage,  in  which  a  verdict  and  judgment  were 
obtained  for  the  plaintiff  of  1000  pounds  damages.  Elizabeth  as- 
signed the  bond,  by  indorsement  on  the  back  of  it,  to  her  father, 
Thomas  L/yon,  the  defendant's  testator,  in  trust  for  the  use  of  the 
child  of  said  Elizabeth,  whose  name  was  Jinn.  The  judgment  for 
the  1000  pounds,  Elizabeth  directed  her  father  to  recover  for  the 
same  use.  Both  sums  were  recovered  by  Thomas  Lyon,  and  loaned 
to  different  individuals  ;  he  declaring,  at  the  time,  and  also  when  he 
received  it  again,  that  it  was  for  the  use  of  Ann,  the  child  of  his 
daughter  Elizabeth.  This  evidence  was  given  by  the  plaintiffs,  who 
were  the  said  Jinn  and  her  husband,  Jacob  F.  Marclay ;  and  to  each 
part  of  it  the  defendant  objected  ;  and  the  objections  were  overruled 
by  the  court,  which  formed  several  bills  of  exception. 

The  defendant  offered  to  prove,  by  a  witness,  that  he  was  present 
at  one  of  the  times  that  Thomas  Lyon  was  alleged  to  have  declared 


272  SUPREME  COURT  [Lancaster, 

[Lyon  v.  Marclay.] 

that  the  money  was  for  the  use  of  Jinn,  and  that  he,  the  witness, 
did  not  hear  any  such  conversation.  This  the  plaintiff  objected  to, 
and  the  court  overruled  the  evidence,  and  the  defendant  excepted. 

The  defendant  also  offered  in  evidence  a  release  by  Elizabeth  Lyon 
to  her  father,  Thomas  Lyon,  from  the  payment  of  the  money  for 
which  this  suit  was  brought ;  which  she  therein  acknowledged  she 
had  received.  This  paper  was  dated  after  suit  brought,  and  was 
objected  to  on  that  ground,  and  also  that  Elizabeth  Lyon  could  not 
release  a  debt  due  to  her  daughter  Jinn.  It  was  rejected,  which 
was  the  subject  of  another  bill  of  exceptions. 

The  defendant  also  contended  that  the  statute  of  limitations  was 
a  bar  to  the  plaintiff's  recovery  ;  the  answer  to  which  was,  that  it 
was  such  a  case  of  trust  that  the  statute  was  not  applicable  ;  and  of 
this  opinion  was  the  court. 

The  opinions  of  the  court,  as  contained  in  the  several  bills  of  ex- 
ception, were  assigned  for  errors. 

W.  Hopkins  and  J.  Hopkins,  for  plaintiff  in  error. 

The  money  for  which  the  suit  is  brought  belonged  to  the  mother, 
and  the  proof  of  the  appropriation  of  it  by  her  amounts  to  nothing 
more  than  a  declaration  of  her  intention  to  give  it  to  her  child  ;  an 
intention  perfectly  within  her  power,  at  all  times,  to  change.  It 
was  a  mere  promise  to  give,  wanting  the  essential  quality  of  a  de- 
livery of  possession,  and,  therefore,  not  binding.  2  Kent's  Comm. 
354.  A  parol  promise  to  pay  money  as  a  gift,  will  not  sustain  an 
action.  7  Johns.  Rep.  26  ;  2  Desaussure  79  ;  2  Johns.  Rep.  52  ;  and 
in  18  Johns.  Rep.  145,  it  was  held,  that  a  note  from  a  father  to  a  son, 
at  sixty  days,  without  consideration,  was  not  recoverable  from  the 
father's  executors. 

A  gift  of  this  kind  is  always  revocable.  1  Johns.  Rep.  55.  And 
if  it  be  so,  it  was  important  for  us  to  show  that  it  had  been  revoked. 
The  plaintiffs  having  given  in  evidence  the  declarations  of  Lyon,  to 
prove  a  gift ;  it  was  competent  for  us  to  give  in  evidence  other  de- 
clarations that  there  was  no  gift.  The  intention  can  only  be  shown 
by  declarations.  1  Phil.  Ev.  355.  The  plaintiffs  claimed  through 
Lyon,  and,  therefore,  his  declarations  were  evidence.  2  Serg.  <$• 
Rawle  354  ;  1  Doll.  65.  The  sum  of  the  plaintiff's  evidence  was 
the  declarations  or  acknowledgements  of  the  defendant's  testator,  that 
his  daughter  Elizabeth  had  made  the  gift :  this  would  not  bind  her ; 
and  the  court  refused  admission  to  evidence  of  her  determination 
that  there  should  be  no  such  gift ;  her  release  was  perfectly  compe- 
tent, and  should  have  been  received. 

Montgomery  and  EUmakcr,  for  defendant  in  error. 

It  has  not  been  pretended  but  that  choses  in  action,  or  evidence  of 
indebtedness,  are  the  subjects  of  gift  and  transfer  ;  and  that  such  a 
gift  or  transfer,  in  consideration  of  natural  love  and  affection,  would 
be  available.  What,  then,  is  this  case  ?  The  mother,  entitled  to  a 


JVoa.  1832.]  OF  PENNSYLVANIA.  273 

[Lyon  v.  Marclay.] 

chose  in  action)  declares  her  intention  to  give  it  to  her  minor  daugh- 
ter ;  actually  appoints  a  trustee  to  receive  the  gift  for  her,  and  de- 
livers the  possession,  as  far  as  the  thing  was  susceptible  of  delivery ; 
permits  him  to  proceed  to  the  collection  of  the  money,  and  to  its  in- 
vestment ;  and  although  this  trustee  continually  declares  the  object 
of  the  trust,  the  mother  never  once  denies  it,  until  the  cestui  gue  trust 
seeks,  by  an  action,  for  that  which  is  hers ;  and  then,  for  the  first 
time,  the  donor  releases  the  trustee,  for  the  purpose  of  defeating  the 
cestui  que  trust — inveigling  her  into  a  suit,  to  cut  her  off  in  the  midst 
of  it.  The  release  was  executed  after  suit  brought,  which  is  aij'  an- 
swer to  its  alleged  competency. 

The  opinion  of  the  Court  was  delivered  by 

Ross,  J. — The  declaration  in  this  case  contained  two  counts,  one 
for  work  and  labour  done  and  performed  by  the  said  Anne,  and  the 
other  for  money  had  and  received  for  her  use  while  sole.  The  de- 
fendant pleaded  non  assumpsit,  and  the  statute  of  limitations,  to 
which  the  plain  tiff  replied  an  assumption  within  six  years.  It  seems 
that  Anne,  the  wife  of  the  plaintiff  below,  was  an  illegitimate  child 
of  Elizabeth  Lyon,  daughter  of  the  deceased  T.  Lyon.  She  was 
born  on  the  29th  of  May  1799.  Robert  Hamilton  was  her  putative 
father.  He  was  indicted  for  the  offence  at  August  sessions  1799, 
and  submitting  to  the  court,  was  sentenced  to  pay  a  fine  of  twenty 
dollars  for  lying-in  expenses,  and  ten  shillings  per  week  for  seven 
years,  from  the  29th  of  May  1799,  to  Elizabeth,  the  mother,  for  the 
support  of  her  child  Anne.  He  gave  a  bond  to  Elizabeth  in  pursu- 
ance of  the  sentence,  which  bond  she  afterwards,  to  wit  20th  of 
March  1802,  assigned  to  her  father,  T.  Lyon,  in  trust  for  the  use  of 
the  child.  Judgment  had  been  entered  on  this  bond  before  the  as- 
signment some  time  in  October  1799  ;  and  a  fieri  facias  had  issued 
under  which  two  hundred  and  fifty  acres  of  land  had  been  levied  on, 
an  inquisition  held,  but  no- condemnation  made. 

T.  Lyon  also  brought  a  suit  against  Robert  Hamilton,  for  seducing 
and  debauching  his  daughter  Elizabeth,  and  on  the  26th  of  April 
1800  obtained  a  verdict  and  judgment  for  100  pounds.  To  August 
term  1799,  Elizabeth  brought  a  suit  against  him  for  a  breach  of  pro- 
mise of  marriage,  and  obtained  a  judgment  for  1000  pounds,  and  on 
the  24th  of  August  1801,  she  entered  satisfaction  on  this  judgment. 
One- half  of  the  100  pounds  and  one  half  of  the  1000  pounds  was 
retained  by  James  Hopkins,  Esquire,  for  his  fees  and  services  in  con- 
ducting the  suits  ;  so  that  the  amount  actually  received  by  T.  Lyon 
on  his  judgment  was  50  pounds ;  and  the  sum  received  by  Elizabeth 
on  her  judgment  500  pounds.  Jlnne  married  the  plaintiff  on  the 
27th  of  April  1824,  being  at  that  time  about  twenty-five  years  of 
age.  She  was  raised  and  supported  by  her  maternal  grandfather, 
T.  Lyon,  and  continued  to  live  with  him  until  she  married  the  plain- 
tiff. During  all  this  time  she  was  treated  in  the  same  manner  as 
were  the  daughters  of  her  respectable  neighbours ;  and  when  old 

2K 


274  SUPREME  COURT  [Lancaster, 

[Lyon  v.  Marclay.] 

enough,  she  worked  as  other  daughters  of  reputable  and  substan- 
tial farmers  are  in  the  habit  of  doing.  From  this  statement  it  ap- 
pears that  she  lived  with  her  grandfather  about  seven  years  after 
she  had  attained  the  age  of  eighteen.  A  mass  of  parol  testimony 
was  given,  in  order  to  prove  that  T.  Lyon  held  the  different  sums  of 
money  received  on  the  judgments  against  Robert  Hamilton  in  trust 
for  Jlnne.  That  part  of  the  evidence,  which  seemed  to  have  much 
relation  to  the  question  trying,  were  his  declarations  made  when  he 
was  offering  to  loan  GOO  pounds,  or  when  he  was  receiving  part  of 
the  moneys  loaned,  or  endeavouring  to  secure  the  same.  Thus  it 
was  proved,  he  said,  "that  he  allowed  the  money  to  go  to  his 
daughter  Betsey's  child  ;"  and  that  he  directed  the  loan  to  be  made 
payable  in  gold  or  silver,  and  assigned  as  a  reason  for  being  more 
particular  about  it  than  about  other  money,  that  "  it  was  the  money 
lie  allowed  for  Jlnne — money  for  the  little  girl;"  again,  it  was  proved, 
that  he  had  declared  that  the  600  pounds  should  go,  and  ought  to  go 
to  Betsey's  child,  though  he  did  not  say  from  whom  the  money  had 
been  received.  Many  expressions  similar  to  these  were  proved  ta 
have  been  made  by  T.  Lyon.  Much  of  the  evidence  given  with 
those  declarations  was  totally  irrelevant,  and  ought  not  to  have  been 
admitted  ;  or  if  it  were  unavoidably  received  in  hearing  that  which 
was  really  applicable  to  the  case,  the  jury  should  have  been  instructed 
by  the  court  that  it  was  not  evidence,  and  directed  to  pay  no  regard 
to  it.  Although  in  questions  of  secret  trusts,  or  such  as  the  trustee 
endeavours  to  avoid,  a  great  latitude  is  allowed  in  the  admission  of 
testimony,  and  almost  every  species  of  acknowledgement,  consistent 
with  the  principles  of  the  law  of  evidence,  may  be  admitted,  in  order 
lo  ferret  out  the  truth,  yet  some  testimony  may  be  so  vague,  uncer- 
tain, and  entirely  foreign  to  the  inquiry  making,  as  to  be  calculated 
to  deceive  and  mislead  any  mind,  but  particularly  such  as  have  not 
been  well  vorsed  in  the  philosophy  of  evidence.  Courts  should 
never  suffer  evidence  to  be  given  to  a  jury,  which  would  only  tend 
to  bury  that  which  was  calculated  to  elucidate  the  case  under  a 
mass  of  rubbish  totally  inapplicable  to  the  points  in  issue.  Even  to 
I  he  most  experienced  in  the  investigation  of  facts,  it  becomes  excess- 
ively irksome  and  laborious,  under  such  circumstances,  to  sift  the 
wheat  from  the  chaff,  and  determine  as  to  what  may  or  may  not 
establish  the  fact  proposed  to  be  proved.  These  general  observa- 
tions will  be  found  to  apply  to  a  great  part  of  the  evidence,  which 
has  been  excepted  to  in  this  case.  The  questions  were,  whether 
Thomas  Lyon  was  a  trustee  for  Jinn,  and  whether  he  held  any  money 
in  trust  for  her  at  any  time  ]  If  he  did  :  what  money  was  it — how 
much — and  from  whom  had  he  received  it  ?  A  great  portion  of 
the  evidence,  therefore,  respecting  the  declaration  of  T.  Lyon  as  to 
his  loaning  money,  his  fears  of  losing  it,  his  getting  it  secured,  his 
receiving  it  afterwards  and  entering  satisfaction  on  mortgages  given 
to  secure  the  same,  could  not  aid  in  the  solution  of  these  questions, 
particularly  unaccompanied  as  they  were  with  any  thing  done  or 


JVow.  1832.]  OF  PENNSYLVANIA.  275 

[Lyon  v.  Marclay.] 

said  by  him,  from  which  it  might  be  inferred,  that  he  held  the  same 
in  trust  for  Jinn. 

I  am  unable  to  discover  any  legal  ground  for  the  rejection  of  the  testi- 
mony of  JV.  Ldghtner.  He  was  offered  to  prove,  that  he  had  been  present 
at  the  time  that  T.  Lyon  was  represented  to  have  said  it  was  Jinn's 
money  ;  and  also,  that  he  was  present  when  the  bond  and  note  were 
paid  off,  and  that  there  was  nothing  said  by  T.  Lyon,  as  to  any  part 
of  the  money  belonging  to  Jinn-  It  is  a  well  known  rule  of  evidence, 
that  one  affirmative  witness,  if  credited,  will  outweigh  several  nega- 
tive witnesses ;  because  one  man  may  see  and  hear  many  things, 
which  another  person  present  may  not  have  seen  or  heard.  The 
veiy  existence,  however,  of  the  rule  shows  incontrovertibly,  that 
negative  testimony  is  legal,  and  therefore  the  court  erred  in  rejecting 
the  evidence  of  JV.  Lightner. 

But  was  the  statute  of  limitations,  which  was  pleaded  in  this 
action,  a  bar  to  the  plaintiff's  recovery  1  I  think  it  was,  unless  the 
plaintiff  proved  an  assumption  within  six  years ;  and  perhaps  the 
court  would  have  been  justified  in  excluding  most  of  the  plaintiff's 
evidence  as  to  proof  of  acknowledgements  made  by  the  defendant, 
more  than  six  years  before  the  suit  was  brought.  In  order  to  pre- 
vent the  statute  being  a  bar,  there  must  be  an  acknowledgement  of 
an  existing  debt  within  six  years.  2  Penns.  Rep.  305,  306,  and 
authors  cited.  It  has  not  been  contended,  that  the  law  is  not  so 
settled  ;  but  it  is  urged,  that  trusts  stand  on  a  different  footing,  and 
are  exempt  from  the  general  rule  of  the  law,  and  without  the  opera- 
tion of  the  statute.  "  The  sound  rule,"  says  Chancellor  Kent, 
"  established  on  the  solid  foundations  of  authority  and  policy,  is,  that 
the  cases  of  trusts  not  to  be  reached  or  affected  in  equity  by  the 
statute  of  limitations,  are  those  technical  and  continuing  trusts, 
which  are  not  at  all  cognisable  at  law,  but  fall  within  the  proper, 
peculiar  and  exclusive  jurisdiction  of  chancery."  See  7  Johns. 
Chan.  Rep.  100  et  seq.,  where  the  whole  subject  is  examined,  and 
see  also  the  learned  note  of  Laussat  to  Fonblanque's  Equity  262,  263. 
But  a  person  who  receives  money  to  be  paid  to  another,  or  to  be  ap- 
plied to  a  particular  purpose,  and  does  not  pay  it  to  the  person,  or 
apply  it  to  the  purpose  intended,  is  a  trustee  and  suable  either  in 
law  or  equity.  Yet  such  cases  are  not  without  the  operation  of  the 
statute  of  limitations  under  the  notion  of  a  trust,  although  they  are 
cases  of  express  and  direct  trusts.  To  exempt  a  trust  from  the  bar  of 
the  statute,  it  must  be,  first,  a  direct  trust ;  secondly,  it  must  be  of 
the  kind  belonging  exclusively  to  the  jurisdiction  of  a  court  of  equity ; 
and  thirdly,  the  question  must  arise  between  the  trustee  and  cestui 
que  trust.  Hence  it  has  been  decided,  that  the  statute  of  limita- 
tions is  a  good  plea  to  a  suit  in  equity,  brought  to  recover  money 
collected  by  an  attorney  for  the  plaintiff,  and  not  accounted  for  by 
him.  Kinney's  Executors  v.  M'Clure,  I  Rand.  284.  So  in  John- 
son v.  Humphreys,  14  Serg.  fy  Rawle  394,  it  was  decided^  that 
when  a  trustee  holds  adversely  to  his  cestui  que  trust,  the  statute 


276  SUPREME  COURT  [Lancaster, 

[Lyon  v.  Marclay.] 

begins  to  run.  I  am  satisfied  from  an  examination  of  the  authorities, 
that  there  is  nothing  in  the  present  case  which  can  exempt  it  from 
the  operation  of  the  statute  of  limitations  ;  and,  therefore,  the  court 
erred  in  charging  the  jury,  that  the  statute  did  not  apply  ;  and  they 
equally  erred  in  leaving  the  law  and  the  facts  to  the  determination 
of  the  jury;  for  there  was  nothing  proved,  according  to  the  evidence 
returned  to  this  court,  from  which  an  express  or  implied  assumption 
could  be  inferred. 

Was  the  release  of  Elizabeth  to  Thomas  Lyon  properly  rejected  1 
It  is  contended,  that  it  was  not  evidence,  because  it  appeared  on  its 
face  to  have  been  given  after  the  suit  was  instituted.  The  suit  was 
commenced  in  April  1826,  and  the  release  was  given  in  September 
1826.  It  was  also  argued,  that  it  should  have  been  pleaded  puis 
darrein  continuance,  to  have  justified  the  court  in  the  admission  of  it 
in  evidence.  It  is  true,  that  such  is  the  general  rule  ;  but  the  court 
may  at  any  time,  to  prevent  injustice,  or  for  special  reasons,  permit  a 
plea  to  be  put  in  nuncpro  tune,  although  a  continuance  has  inter- 
vened. 4  Serg.  <$•  Rawle  238,  and  see  10  Johns.  Rep.  161.  I  appre- 
hend, that  whenever  the  pleas  already  entered  are  sufficient  to  enti- 
tle the  party  to  the  admission  of  the  evidence,  in  case  it  existed  be- 
fore the  bringing  of  the  suit,  it  may  be  given  in  evidence  without 
any  additional  plea,  or  a  repetition  of  the  same  plea  puis  darrein  con- 
tinuance. There  is  great  hazard  in  a  plea  of  puis  darrein  continuance, 
because  it  waives  all  former  pleas.  It  can  only  be  safely  entered, 
where  it  is  a  sufficient  bar  to  the" plaintiff's  recovery.  In  the  case 
under  consideration,  could  the  defendant  have  safely  abandoned  the 
pleas  of  non  assumpsit,  and  the  statute  of  limitations  1  For  this  must 
have  been  the  effect,  if  the  release  had  been  pleaded  puis  darrein  con- 
tinuance. In  4  Serg.  fy  Rawle  239,  the  present  chief  justice,  in  de- 
livering the  opinion  of  the  court,  said,  "  it  is  very  certain,  a  plea /mis 
darrein  continuance  waives  all  former  pleas  ;  that  the  defendant  must 
stand  or  fall  by  it ;  and  if  put  in  issue,  it  forms  the  only  subject  of 
inquiry  before  the  jury."  With  this  agrees  Buller's  JV.  P.  209. 
The  question  is  therefore  reduced  to  the  inquiry,  whether  a  release, 
obtained  after  suit  brought,  can  be  given  in  evidence  on  the  plea  of 
non  assumpsit.  No  one  will  doubt  that  money  had  and  received  in 
payment  after  action  brought,  but  before  trial,  may  be  given  in  evi- 
dence under  the  general  issue  of  non  assumpsit  in  an  action  on  the 
case,  or  that  the  record  of  a  recovery  from  another  person  equally 
liable  with  the  defendant  to  the  payment  of  the  same  sum  for  which 
the  action  is  brought,  may  not  also  be  given  in  evidence  under  the 
general  issue.  A  person,  who  has  once  recovered  a  full  and  com- 
plete satisfaction  from  one  man,  cannot  again  recover  from  another, 
for  the  same  thing.  The  cases  of  indorsed  notes,  or  of  trespasses 
committed  by  several  persons,  are  illustrations  of  this  principle.  In 
the  case  of  Bird  v.  Randall,  3  Burr.  1353,  which  was  an  action  on 
the  case  for  inducing  a  journeyman  to  leave  the  service  of  the  plain- 
tiff, Lord  Mansfield  says,  "  an  action  upon  the  case  is  founded  upon 


JVew.  1832.]  OF  PENNSYLVANIA.  277 

[Lyon  v.  Marclay.] 

the  mere  justice  and  conscience  of  the  plaintiff's  case,  and  is  in  the 
nature  of  a  bill  in  equity,  and  in  effect  is  so  ;  and  therefore,  such  a 
former  recovery,  release  or  satisfaction  need  not  be  pleaded,  but  may 
be  given  in  evidence.  For  whatever  will  in  equity  and  conscience, 
according  to  the  circumstances  of  the  case,  bar  the  plaintiff's  re- 
covery, may  in  this  action  be  given  in  evidence  by  the  defendant ; 
because  the  plaintiff  must  recover  upon  the  justice  and  conscience  of  his 
case,  and  upon  that  only"  From  an  attentive  consideration  of  the 
principles  contained  in  this  case  of  Bird  v.  Randall,  it  seems,  that 
satisfaction  or  releases  given  after  suit  brought,  but  before  trial,  may 
be  given  in  evidence  in  this  action,  under  the  general  issue.  And 
with  this  opinion  accords  the  case  of  Bailey  et  al.  v.  Fettyplace,  7 
Mass.  325.  Sedgwick,  Justice,  says,  whenever  full  satisfaction  has 
been  received  by  the  plaintiff,  before  the  trial,  it  is  as  effectual  a  bar 
to  his  recovery,  as  if  he  had  been  paid  before  the  commencement  of 
the  action.  He  cites  the  case  of  Bird  v.  Randall,  and  adds,  that  a 
full  satisfaction,  after  the  commencement  of  the  action,  and  before  the 
trial,  need  not  be  pleaded,  but  may  be  given  in  evidence  under  the 
general  issue.  I  am  clearly  of  opinion,  from  these  authorities,  as 
well  as  from  the  reason  and  justice  of  the  law,  that  the  release  was 
improperly  rejected,  and  that  the  court  erred  in  not  admitting  it. 

The  last  point,  which  it  is  material  to  notice  is,  whether  an  execu- 
tory gift,  unaccompanied  with  any  delivery  of  possession,  is  a  nudum 
pactum,  and  therefore  neither  binding,  nor  to  be  enforced  in  law  or 
equity.  It  has  been  contended,  that  a  gift  is  not  consummate  until 
delivery  of  possession  of  the  thing  promised.  In  the  case  of  Fink  v. 
Cox,  18  Johns.  Rep.  145,  it  has  been  decided,  that  a  promissory  note 
for  1000  dollars,  given  merely  from  affection,  by  a  father  to  his  son, 
and  payable  sixty  days  after  date,  was  not  a  valid  gift  of  so  much 
money,  but  a  mere  promise  to  give,  and  that  blood  or  natural  affection 
was  not  a  sufficient  consideration  to  support  a  simple  executory  con- 
tract. The  counsel  for  the  plaintiff  in  error  also  referred  to  Kent's 
Com.  354 ;  Pearson  v.  Pearson,  7  Johns.  Rep.  26  ;  Noble  v.  Smith,  2 
Johns.  Rep.  52.  I  content  myself,  by  merely  referring  to  the  cases 
on  this  point,  cited  by  the  counsel,  which  seem  to  support  the  posi- 
tion contended  for  ;  because,  Mr  Ellmaker,  on  the  part  of  the  defen- 
dant in  error,  with  his  usual  candour,  distinctly  said,  "  we  do  not 
differ  about  the  law  of  gifts,  but  the  application  of  it  to  this  case." 
He  contended,  that  Thomas  Lyon  was  the  natural  guardian  of  Jinn, 
and  that  therefore  the  gift  was  as  fully  consummated  by  delivery, 
(the  fund  or  thing  being  in  his  hands)  as  in  the  nature  of  things  it 
could  be.  This  reasoning,  I  think,  is  more  ingenious  than  sound. 
As  I  understand  the  law,  the  natural  guardian  has  no  power  to 
receive  the  minor's  money  ;  nor  can  he  release  any  claims  the  minor 
may  have.  If  T.  Lyon  did  receive  any  money  for  her,  no  doubt  he 
would  be  considered  as  holding  it  in  trust.  It  strikes  me,  that  the 
mos.t  important  question  is  one  of  fact,  and  that  is,  whether  Eliza- 
beth, the  mother,  paid  into  the  hands  of  her  father  500  pounds  for 


278  SUPREME  COURT  [Lancaster, 

[Lyon  v.  Marclay.] 

her  daughter  Jinn.  And  if  this  fact  should  be  established  in  the 
affirmative,  then,  whether  the  law  would  permit  her  to  revoke  or 
alter  the  original  direction  of  the  use  to  which  it  had  been  applied. 

I  am  inclined  to  think,  that  money  deposited  in  the  hands  of  the 
father  by  the  daughter,  to  be  paid  to  Jinn,  without  any  consideration 
having  been  received,  and  with  no  other  claims  upon  it,  than  the 
mere  benevolence  of  Elizabeth,  would  be  only  a  gift,  subject  to  the 
same  rules  of  law  which  govern  other  gifts.  Elizabeth  might  coun- 
termand the  order  to  pay  to  Jinn,  and  direct  it  to  be  paid  to  herself, 
if  no  other  person  had  derived  any  claim  to  it  before  such  counter- 
mand. And  Jinn,  thus  situated,  could  not  enforce  the  payment 
thereof.  2  Dessaus.  79.  This  I  consider  correct,  as  a  general  prin- 
ciple ;  but  circumstances  may  exist,  arising  out  of  the  particular 
transaction  of  the  case,  which  would  essentially  vary  the  rule. 

I  have  expressed  my  opinion  upon  the  points  adverted  to  in  the 
argument ;  from  which  it  appears  the  court  erred  in  the  particular 
instances  referred  to. 

Judgment  reversed,  and  a  venire  facias  de  novo  awarded. 


Fisher  against  Kean. 

To  receive  counter  evidence  of  facts,  adduced  to  make  way  for  the  rejection  of 
other  evidence,  and  thus  draw  the  decision  of  the  cause  from  the  jury  to  the  court, 
is  error. 

ERROR  to  the  special  court  of  common  pleas  of  Dauphin  county. 

Ejectment  by  Jane  Kean  against  George  Fisher. 

Upon  the  trial  of  this  cause,  the  defendant  offered  in  evidence  a 
deed  from  the  plaintiff  to  him  for  the  land  in  dispute.  The  defend- 
ant's counsel  objected  to  its  admission,  on  the  ground  that  it  had 
never  been  delivered ;  and  gave  evidence  to  the  court  to  establish 
that  fact ;  upon  which  evidence  the  deed  was  rejected. 

JTf'Comucfc,  for  plaintiff  in  error. 

If  the  deed  offered  in  evidence  were  a  perfect  one,  having  the 
properties  of  execution  and  delivery,  its  effect  would  have  been  to 
determine  every  thing  in  the  cause.  Whether  it  possessed  those 
essential  qualities  was  a  substantive  matter  of  fact ;  which  alone  the 
jury  were  competent  to  decide.  As  well  might  the  court  assume 
the  power  to  determine,  upon  the  plea  of  non  estfactum,  whether  the 
signature  was  a  forgery  or  not,  and,  determining  it  affirmatively,  re- 
ject the  deed.  He  cited  6  Serg.  <$•  Rawle  310 ;  I  Serg.  fy  Rawle  72 ; 


JVow.  1832.]  OP  PENNSYLVANIA.  279 

[Fisher  v.  Kean.] 

10  Serg.  fy  Rawle  170 ;  1  Binn.  442 ;  6  Serg.  fy  Rawle  15,1  Harris 
fy  John.  323  ;  9  Serg.  fy  Rawle  68,  82. 

Elder,  contra. 

The  paper  was  offered  in  evidence  as  a  deed ;  the  court  were 
abundantly  satisfied  that  it  wanted  the  essential  quality  of  a  deed, 
and  therefore  rightly  rejected  it. 

PER  CURIAM. — We  have  more  than  once  spoken  in  terms  of  cen- 
sure of  a  practice  too  common  in  the  trial  of  causes,  of  receiving 
counter  evidence  of  facts,  adduced  to  make  way  for  the  rejection  of 
other  evidence,  and  thus  drawing  the  decision,  perhaps  of  the 
whole  cause,  from  the  jury  to  the  court.  There  are  several  decisions 
to  this  effect,  of  which  Crotzer  v.  Russel,  9  Serg.  fy  Rawle  68,  is  an 
instance ;  notwithstanding  which,  we  are  sorry  to  see  the  practice 
persevered  in.  Our  course,  in  all  instances  of  it,  is  a  plain  one.  Here 
prima  facie  evidence  had  been  given  of  the  execution  of  a  conveyance, 
which,  if  found  to  be  the  deed  of  the  plaintiff,  made  an  end  of  the 
controversy ;  yet,  this  was  successfully  rebutted  before  the  court,  and 
not  the  jury,  who  were  the  constitutional  judges  of  the  fact  on  which 
the  cause  turned.  On  the  very  evidence  submitted,  a  jury  might 
have  found  in  favour  of  the  defendant.  But  the  degree  of  the  proof 
is  immaterial,  if  it  makes  out  a,  prima  facie  case  of  competency.  Here 
a  deed,  apparently  well  executed  on  the  face  of  it,  acknowledged, 
recorded  and  produced  by  the  grantee,  was  rejected  on  the  faith  of 
proof  introduced  to  rebut  the  delivery ;  and  this  we  are  compelled 
to  say  was  gross  error. 

Judgment  reversed,  and  a  venire  de  novo  awarded. 


280  SUPREME  COURT  [Lancaster, 


Geddis  against  Hawk. 

A  creditor  is  not  bound  to  resort  to  the  principal  for  the  collection  of  his  debt,  in 
the  first  instance;  nor  is  he  bound  to  resort  first  to  a  lien  which  secures  his  debt,  but 
he  may  sue  and  recover  from  a  surety. 

What  a  surety  may  and  may  not  avail  himself  of  as  an  equitable  defence. 

WRIT  of  error  to  the  common  pleas  of  Lebanon  county. 

This  was  an  action  of  debt  by  Robert  Geddis  and  Samuel  Carper 
surviving  John  Wolfersberger,  against  Jonas  Hawk  surviving  executor 
of  Michael  Hawk  who  was  a  joint  and  several  obligor  with  Mam 
Hawk. 

The  plaintiff  gave  in  evidence  two  bonds,  dated  the  3d  April  1810, 
given  by  Mam  Hawk  and  Michael  Hawk  to  Robert  Geddis,  Samuel 
Carper  and  John  Wolfersberger,  conditioned  for  the  payment  of  471 
pounds  1  shilling  and  4  pence,  on  the  1st  April  1814,  and  the  1st 
April  1815. 

The  defendant  then  gave  in  evidence  the  record  of  the  proceed- 
ings of  the  orphan's  court  of  Dauphin  county,  for  the  sale  of  the  real 
estate  of  John  Carper  deceased,  purchased  by  Jldam  Hawk,  for  which 
he  gave  the  said  two  bonds  with  Michael  Hawk  as  his  security;  and 
offered  to  prove  "  that  the  plaintiffs  in  the  above  suit,  the  adminis- 
trators of  John  Carper  deceased,  have  not  and  do  not  resort  to  the 
aforesaid  lands  so  sold  for  the  recovery  of  the  money  due  on  said  two 
bonds,  or  take  such  legal  means  as  they  in  law  and  equity  should 
do  to  make  the  said  money,  from  said  lands,  so  sold  as  aforesaid : 
That  Adam  Hawk  and  wife  sold  and  conveyed  one  hundred  and  fif- 
teen acres  and  one  hundred  and  one  perches  of  the  land  to  Peter 
Witmer,  in  the  spring  of  1817,  and  received  a  large  sum  of  money, 
say  about  8000  dollars  in  hand,  and  took  bonds  for  the  residue;  and 
also  sold  the  residue  of  said  lands  to  Philip  Gruber;  and  all  this  with 
the  knowledge,  and  under  the  very  eyes  of  the  plaintiffs  in  this 
cause,  who  made  no  request  of  payment  thereout,  nor  did  they  make 
any  objections  to  the  sale  or  transfer  of  title  to  said  land;  that 
Michael  Hawk,  the  surety  in  said  bonds,  died,  having  first  made  his 
last  will  in  writing,  and  therein  appointed  Jonas  Hawk  and  others 
executors  thereof;  that  probate  was  had  of  said  will  at  Lebanon,  in  the 
county  of  Lebanon ;  that  these  executors  gave  due  and  public  notice 
to  all  the  creditors  of  Michael  Hawk  deceased,  to  bring  forward  and 
exhibit  their  claims  and  demands  according  to  the  provisions  of  the 
act  of  the  general  assembly,  entitled  an  act  directing  the  descent  of 
intestates'  real  estates  and  distribution  of  their  personal  estates,  and 
for  other  purposes  therein  mentioned,  passed  the  19th  day  of  April 
1794;  and  that  these  plaintiffs,  residing  in  the  same  neighbourhood, 


1832.]  OF  PENNSYLVANIA.  281 

[Geddis  v.  Hawk.] 

never  made  any  exhibit  of  these  bonds  now  in  suit,  or  demand  of 
their  amount,  of  or  from  the  executors  of  said  Michael  Hawk  de- 
ceased, but  suffered  the  said  executors  to  settle  off  his  estate  and  pay 
the  same  over  to  the  legatees  without  claim,  demand  or  objection  ; 
that  the  said  Peter  Witmer  placed  his  son  John  Witmer  in  the  pos- 
session, use  and  enjoyment  of  the  said  lands  so  by  him  purchased 
of  Mam  Hawk,  in  the  year  1817,  who  resides  thereon  ever  since. 
That  Robert  Geddis  was  the  most  active  administrator  of  John  Carper 
deceased,  and  did  the  principal  part  of  the  business  in  settling  his 
estate,  and  made  and  signed  a  notice  in  writing,  which  he  sent  to 
John  Witmer  in  the  year  1819,  stating  as  follows  : 

"  Sir,  Please  to  take  notice,  that  two  bonds  remain  in  my  hands 
unpaid,  given  by  Mam  Hawk  and  Michael  Hawk,  unto  Robert  Ged- 
dis, Samuel  Carper,  John  Wolfersberger,  administrators  of  John  Carper 
deceased,  of  Londonderry  township,  in  the  county  of  Dauphin,  now 
Lebanon  ;  the  one  dated  the  3d  of  April  1810,  conditioned  to  pay  the 
sum  of  470  pounds  on  the  1st  of  April  1815,  and  the  other  thereof  is 
dated  the  3d  of  April  1810,  conditioned  to  pay  the  sum  of  470  pounds 
on  the  1st  of  April  1814,  which  said  bonds  were  given  by  Mam  and 
Michael  Hawk  as  part  of  the  purchase  money  of  a  certain  plantation 
and  tract  of  land,  situate  in  Londonderry  township,  now  a  part  in 
Lebanon  and  a  part  in  Dauphin  county,  which  you  purchased  from 
the  said  Jldam  Hawk  some  time  in  the  year  1816  or  1817 ;  you  will 
therefore  please  to  take  notice,  and  not  pay  any  more  money  on 
account  of  the  said  purchase,  as  I  will  look  to  the  lands  for  the  pay- 
ment of  the  two  bonds." 

"  That  having  received  the  above  notice,  Peter  Witmer  has  retained 
in  his  hands  near  4000  dollars  of  the  purchase  money  which  he  was 
to  pay  Jldam  Hawk  for  said  land,  and  it  is  lying  useless  and  dead 
ever  since,  all  which  evidence  was  objected  to  by  the  plaintiff,  and 
the  court  overruled  the  objection  and  admitted  the  evidence.  To 
which  opinion  of  the  court  the  counsel  for  the  plaintiff  djd  except." 

The  defendants  then  further  gave  in  evidence  the  discharge  of 
Jldam  Hawk  as  an  insolvent  debtor,  of  5th  of  August,  and  7th  of 
November  1822.  When  the  plaintiffs,  to  maintain  the  issue  on 
their  part,  gave  the  following  evidence  :  the  will  of  Michael  Hawk, 
dated  14th  of  September  1813,  and  probate  thereof;  and  then  called 
John  Gloninger,  Esq.,  who  being  sworn,  did  say,  I  drew  the  deed 
from  the  administrators  to  Jldam  Hawk,  in  March  1817:  I  do  not 
believe  that  any  money  was  paid  by  Jldam  Hawk  at  the  time  of  its 
execution  at  my  house.  It  is  usual  to  give  such  a  receipt  as  this  on 
the  deed,  when  bonds  are  given  for  the  gales  :  I  saw  no  bonds  there. 
I  drew  the  agreement  between  Jldam  Hawk  and  Peter  Witmer,  and 
discovered  then  the  defect  in  the  deed  written  by  Hollingsworth,  from 
the  administrators  of  Carper  to  Mam  Hawk,  and  I  informed  the  par- 
ties that  the  deed  was  defective.  That  it  contained  no  grant,  &c., 
and  they  and  Mr  Wright,  the  counsel  for  Mam  Hawky  agreed  that  I 
should  draw  another  deed  from  the  administrators  to  Mam  Hawk. 

2L 


282  SUPREME  COURT  [Lancaster, 

[Geddis  v.  Hawk.] 

I  did  so  ;  and  the  administrators  came  and  executed  the  deed  wil- 
lingly without  making  any  objections.  Some  money  was  paid  by 
Peter  Witmer  to  Mam  Hawk,  on  the  3d  of  April  1817,  when  the  deed 
was  executed  ;  but  how  much  I  cannot  remember.  Michael  Hawk, 
I  think,  lived  with  Jldam  Hawk  when  I  drew  his  will  in  1813,  but  I 
am  not  sure.  I  cannot  say  particularly  the  very  words  used  by  Mi- 
chael, when  he  gave  me  instructions  to  draw  his  will,  but  the  sub- 
stance was,  that  Jldam  Hawk,  his  son,  had  received  his  share  of  his 
father's  estate,  either  in  the  place  at  Camblestown,  or  in  the  money 
paid  for  it,  I  cannot  remember  which  ;  I  had  asked  him  the  reason 
lie  omitted  to  name  Jldam  in  his  will.  I  drew  the  recitals  in  the 
deed  from  the  deed  of  Hollingswortli's  drawing.  The  receipt  would 
imply  that  some  money  was  paid  at  the  time  of  executing  it,  but  I 
cannot  remember  that  I  saw  any  money  paid ;  there  might  have 
been  money  paid  without  my  recollecting  it.  There  was  nothing 
said  about  the  purchase  money  being  unpaid.  It  was  intended  that 
Peter  Witmer  should  have  a  full  and  clear  title.  The  administrators 
were  not  present  at  any  time.  The  object  of  the  new  deed  was 
merely  to  cure  the  defect  in  the  first  one  ;  not  to  warrant  or  guaranty 
any  title.  There  was  nothing  said  to  the  administrators  about 
Peter  Witmer ;  I  stated  to  them  nothing  about  him  or  his  title,  but 
merely  the  defect  in  the  first  deed,  which  contained  no  conveyance. 
The  bond  of  indemnity  was  executed  at  the  same  time  that  the  deed 
from  Jldam  Hawk  to  Peter  Witmer  was  executed  ;  the  bond  was  given 
to  indemnify  Witmer  against  all  claims  whatsoever.  I  do  not  remem- 
ber   particularly,  or  that  any  thing  was  said  about  the  incum- 

brance  of  the  lien  of  the  purchase  money  ;  it  was  to  secure  to  Witmer 
a  full  and  clear  title.  The  plaintiff  then  offered  the  bond  of  indem- 
nity, and  gave  it  in  evidence,  dated  3d  of  April  1817,  from  Mam 
Hawk,  Martin  Thomas  and  John  Wolfserberger,  to  Peter  Witmer,  for 
the  sum  of  5215  pounds,  to  indemnify  Peter  Witmer  against  all  claims 
and  incumbrances  on  the  land  he  purchased  from  Jldam  Hawk,  prout 
the  bond  :  and  further,  the  plaintiff  gave  in  evidence  a  full  exempli- 
fication of  the  record  of  the  proceedings  in  the  orphan's  court  of 
Dauphin  county,  for  the  sale  of  the  land  of  John  Carper  deceased, 
to  Jldam  Hawk.  It  was  then  admitted  by  the  parties,  that  about 
4000  dollars  were  retained  by  Peter  Witmer  after  Robert  Geddis's 
notice  to  him,  say  two  bonds,  738  pounds  2  shillings  and  6  pence, 
each  payable  in  1819  and  1820.  The  plaintiff  further  gave  in  evi- 
dence the  record  of  the  suits  Nos.  15  and  16,  to  November  term 
1818,  by  the  administrators  of  Carper  against  Jldam  Hawk,  on  the 
bonds  in  this  suit  and  judgment  thereon ;  and  here  the  defendants,  to 
show  that  the  bond  of  indemnity  was  only  intended  to  embrace 
judgments  and  mortgages  against  Jldam  Hawk,  and  not  the  lien  for 
the  purchase  money,  offered  in  evidence  the  records  of  certain  judg- 
ments, &c.  against  Jldam  Hawk. 

Here  Mr  JVbrm,  for  the  plaintiffs,  offered  and  tendered  to  the  de- 
fendant, au  assignment  of  the  rights  of  the  plaintiffs  to  proceed  against 


JYW  1832.]  OP  PENNSYLVANIA.  283 

[Geddis  y.  Hawk  ] 

the  fund  fixed  by  the  sale  in  the  orphan's  court,  dated  7th  of  August 
1829.  The  defendant  then  gave  in  evidence  the  record  of  two  suits 
Nos.  23  and  24,  to  November  Term  1821  :  a  scire  facias  and  an 
ejectment,  and  non  pros,  of  writ  of  error.  And  here  the'testimony 
closed  and  the  counsel  for  the  plaintiff  submitted  to  the  court  the 
following  points. 

1.  That  the  bonds  in  suit  are  joint  and  several,  and  that  Robert 
Geddis  and  Samuel  Carper  have  in  law  a  perfect  right  to  sue  Michael 
or  Mam  Hawk,  or  their  representatives,  for  the  money,  and  that  the 
suit  may  be  commenced  against,  both  or  either  at  the  election  of 
Geddis  and  Carper. 

2.  That  Michael  Hawk  having  signed,  and  sealed  and  delivered 
these  bonds  as  his  act  and  deed,  is  bound  in  law  to  pay  the  money 
on  the  day  fixed,  and  if  he  seek  to  be  relieved  from  the  penalty  of 
the  bonds,  he  must  show  and  prove  actual  payment,  or  that  in  equity 
and  good  conscience  it  ought  not  to  be  paid. 

3.  That  as  there  is  no  evidence  of  the  actual  payment  of  the  mo- 
ney, or  pretence  of  payment  set  up  by  the  defendant,  his  defence 
entirely  rests  upon  circumstances,  and  the  equity  they  pretend  to 
establish. 

4.  That  if  from  the  evidence  of  Frederick  Wolfersberger,  John 
Gloninger  and  the  will  of  Michael  Hawk,  together  with  the  relation 
of  the  parties,  the  jury  believe  that  Michael  Hawk  signed  and  sealed 
these  bonds  given  for  the  half  of  the  purchase  money  of  the  lands 
bought  by  Jldam  Hawk  from  the  administrators,  with  the  view,  and 
for  the  purpose  of  advancing  his  son  Jldam,  and  of  making  these 
bonds  his  son  Jldam's  share  of  his  estate,  then  in  that  case  Michael 
Hawk  was  not  the  surety  but  the  principal  in  the  bonds. 

5.  That  Jldam-  Hawk  is  not  named  in  his  father's  will :  and  as 
there  is  not  a  word  of  testimony  or  proof  in  the  cause  that  Jldam 
ever  received  any  thing  from  his  father  on  account  of  his  share  in 
the  estate,  and  as  there  is  the  clear  and  full  proof  of  John  Gloninger, 
who  drew  the  will,  that  Michael  Hawk,  when  he  gave  directions  for 
making  his  will,  gave  as  a  reason  for  excluding  Jldam,  that  Jldam 
had  his  share  in  the  Campbell's  town  land,  or  when  it  was  bought 
he  had  his  share — There  is,  from  all  these  facts  and  circumstances, 
manifest  proof  that  Michael  Hawk  was  not,  or  cannot  be  considered 
in  the  light  of  a  surety. 

6.  That  if  Michael  Hawk  was  but  a  surety  in  these  bonds,  he  is 
not  discharged,  because  neither  he  nor  his  executor  ever  called  upon 
R.  Geddis,  or  Carper,  or  Wolfersberger,  requesting  them  to  sue  Jldam, 
or  telling  them  if  they  did  not  sue  Jldam  Hawk,  he,  Michael  Hawk, 
or  his  executors,  or  his  estate  would  be  considered  as  discharged  : 
that  nothing  but  a  positive  request  made  by  the  surety  upon  the 
creditors,  and  this  request  clear  and  fully  proved,  can  discharge  a 
surety. 

7.  That  the  proceedings  in  the  orphan's  court  of  Dauphin  county 
give  a  good  and  perfect  title  to  Jldam  Hawk  for  the  land  he  bought ; 


284  SUPREME  COURT  [Lancaster, 

[Geddis  v.  Hawk.] 

and  the  deed  by  the  administrators,  made  in  pursuance  of  the  orders 
of  the  orphan's  court,  is  but  the  evidence  of  the  record  of  the  sale 
and  confirmation,  and  this  deed  does  not,  nor  could  not,  without  the 
actual  payment  of  the  purchase  money,  discharge  the  land  of  the 
lien  and  charge  of  the  purchase  money  fixed  by  the  statute  of  2d 
April  1804. 

8.  That  Peter  Witmcr  was  a  purchaser  from  Jl.  Hawk  with  full 
notice  of  the  balance  of  Hawk's  purchase  money  remaining  a  lien 
upon  the  land  ;  that  he  had  notice  of  the  act  of  1804  and  of  all  the 
proceedings  had  in  the  orphan's  court  recited  in  his  deed;  that  having 
this  full  notice  he  takes  a  bond  of  indemnity  from  Thomas  and 
Wolfersberger  to  secure  him  against  all  peril  and  loss,  and  that  in  the 
language  of  the  supreme  court  in  this  ^ause,  "  in  every  view,  he, 
Peter  Witmer,  stands  in  the  situation  of  Mam  Hawk,  and  has  no  pe- 
culiar equity." 

9.  That  the  evidence  of  the  notice  served  in  1829  by  the  adminis- 
trators of  Carper  upon  Peter  Witmer,  not  to  pay  over  to  Mam  Hawk 
the  balance  of  his  purchase  money,  and  the  call  in  the  newspapers 
of  February  1817,  by  the  executors  of  M.  Hawk,  for  the  creditors  to 
present  their  demands,  are  not,  in  equity,  circumstances  that  can  dis- 
charge the  estate  of  Michael  Hawk  from  the  payment  of  the  money, 
and  that  such  is  the  law  laid  down  by  the  supreme  court  in  this 
cause. 

10.  That  by  the  circumstances  given  in  evidence  on  this  trial,  the 
plaintiffs  are  entitled  and  have  a  right,  in  law  and  justice,  to  a  ver- 
dict at  all  events,  upon  the  condition  of  assigning  to  the  administrator 
of  Mkhael  Hawk,  all  their  right  and  remedies  to  the  lands,  and  the 
lien  and  charge  remaining  upon  them,  and  waiting  with  the  execu- 
tion in  this  suit,  until  the  defendant  proceed  at  his  own  cost  against 
the  land,  and  exhaust  it. 

11.  That  from  the  evidence  given  upon  this  trial,  and  from  the 
tender  now  made  by  Robert  Geddis  and  Samuel  Carper  of  the  assign- 
ment by  their  deed  of  all  their  right  and  their  remedies  to  the  ad- 
ministrator of  M.  Hawk,  to  substitute  him  in  their  place  and  clothe 
him  with  all  their  securities  relating  to  the  real  fund,  and  from  their 
offer  to  file  this  deed  of  assignment  under  the  direction  of  the  court 
of  record  in  this  cause,  upon- their  obtaining  a  verdict,- either  condi- 
tional or  absolute — From  all  this  evidence  and  from  this  tender,  the 
plaintiffs  Geddis  and  Carper  are  entitled  to  an  absolute  verdict. 

And  the  defendants  submitted  the  following  points. 

1.  If  the  jury  believe  the  evidence  given  on  this  trial,  viz. — Pro- 
ceedings of  orphan's  court  to  sale  of  the  lands ;  bonds  in  suit  taken  for 
part  of  the  purchase  money  on  such  sale,  and  Michael  Hawk  surety 
in  the  bonds,  plaintiffs  giving  the  deed  to  Mam  Hawk,  24th  March 
1817,  the  death  of  Michael  Hawk  in  1815.  Notice  to  creditors 
on  the  15th  of  February  1817,  by  the  executors  to  Michael  Hawk, 
and  no  demand  ever  made  of  them  by  plaintiffs  this  suit  brought. 
Notice  by  Robert  Geddis  to  Witmcr,  who  bought  of  Mam  Hawk,  with 


JVot>.  1832.]  OF  PENNSYLVANIA.  285 

[Geddis  v.  Hawk.] 

the  knowledge  not  to  pay  A.  Hawk  the  money  due  for  the  land,  but 
that  the  plaintiffs  would  look  to  the  land  for  the  payment  of  these 
bonds,  and  Witmer  keeping  back  the  money,  will  not  these  acts  of 
plaintiff  discharge  the  surety  Michael  Hawk,  and  his  estate,  from  the 
payment  of  the  bonds  1 

2.  That  if  the  jury  believe,  that  plaintiffs  knew  that  Mam  Hawk 
had  sold  to  Peter  Witmer,  by  articles  of  agreement ;  that  when  the 
deeds  and  title  papers  were  brought  to  Judge  Gloninger  to  draw  a 
deed  from  Adam  Hawk  to  Witmer,  that  the,  judge  discovered  the 
omissions  and  imperfections  in  the  deed,  6th  April  1811,  by  the  said 
administrators  to  Adam  Hawk ;  that  the  said  administrators  were 
told  of  these  imperfections,  and  requested  to  execute  a  new  deed, 
and  knew  that  Witmer  had  bought  the  lands  from  Adam  Hawk; 
that  they  executed  the  deed  of  the  24th  of  March  1817,  without 
saying  a  word  about  the  bonds  on  which  this  suit  is  brought  re- 
maining yet  unpaid,  and  this  being  after  the  death  of  Michael  Hawk, 
the  surety  ;  that  they  executed  the  last  deed  without  making  any 
exertion,  or  in  any  manner  whatsoever  attempting  to  have  these 
bonds  paid  out  of  the  hand  money,  to  be  paid  by  Witmer  to  Hawk, 
all  these  bonds  being  then  due  :  that  these  facts,  if  found  by  the 
jury,  would  discharge  Michael  Hawk  as 'the  bail  or  surety  in  these 
bonds  from  the  payment  of  the  bonds. 

3.  That  the  two  suits  to  November  term  1818,  No.  15  and  16, 
and  fieri  facias  and  levy,  are  a  discharge  of  the  debt,  and  show  the 
debt  satisfied ;  that  this  suit  is  a  bar  to  any  other  suit ;   that  the 
plaintiffs,  having  omitted  to  notify  and  bring  in  the  terre  tenants 
upon  the  record,  so  as  to  make  the  lands  liable  for  the  purchase 
money,  Carper's  administrators    have  put  it  out  of.  the  power  of 
Michael  Hawks  representatives  ever  to  resort  to  the  lands  by  any 
action,  either  in  law  or  equity,  and  therefore  plaintiffs  in  this  suit 
ought  not  to  recover. 

The  court,  upon  the  points  submitted  by  the  plaintiffs,  charged  the 
jury  as  follows.  That  the  first,  second  and  third  points,  as  stated, 
were  the  law.  That  the  fourth  point  was  the  law,  but  that  evidence 
had  been  given  to  show  that  Michael  Hawk  was  the  surety  in  the 
bonds  ;  and  whether  he  was  surety  or  principal,  was  a  matter  of  fact 
for  the  jury  to  decide.  That  the  sixth  and  seventh  points  are  the 
law.  To  the  eighth  point  the  court  charged,  that  Peter  Witmer  was 
a  purchaser  from  Adam  Hawk.  The  proceedings  in  the  orphan's 
court  recited  in  his  deed,  are  notice  to  him  that  by  the  act  of  the 
2d  of  April  1804,  the  balance  of  the  purchase  money,  if  any  remained 
due  by  Adam  Hawk,  was  a  lien  on  the  land,  and  with  this  notice  he 
takes  a  bond  of  indemnity  from  A.  Hawk,  Thomas  and  Wolfers- 
berger  to  secure  him  against  all  claims  on  the  land.  Therefore  Pe- 
ter Witmer  stands  in  the  situation  of  Adam  Hawk,  and  has  no  pecu- 
liar equity.  That  the  ninth  and  tenth  points  are  the  law.  On  the 
eleventh  point  the  court  charge  the  jury :  that  from  all  the  evidence 
as  stated  on  this  point,  together  with  the  tender  of  plaintiffs'  deed 


286  SUPREME  COURT  [Lancaster, 

[Geddis  v.  Hawk.] 

to  the  administrator  of  JWichael  Hawk,  the  plaintiffs  were  not  enti- 
tled to  an  absolute  verdict,  if  the  jury  should  be  of  opinion  from  the 
evidence  in  the  cause,  that  JMichael  was  only  the  surety  in  the  bonds. 
But  if  the  jury  should  be  of  opinion  that  he  was  a  principal  in  the 
bonds,  and  not  the  surety,  then,  unless  they  are  satisfied  that  he  has 
by  payment  or  otherwise  been  discharged  from  liability  on  the  bonds, 
they  ought  to  find  an  absolute  verdict  in  favour  of  plaintiffs. 

Upon  the  points  submitted  by  defendant,  the  court  charged  the 
jury,  that  they  were  not  the  law  ;  that  there  was  no  evidence  that 
plaintiffs  knew  of  the  bargain  between  Peter  Witmer  and  Adam 
Hawk,  or  the  payment  of  the  money.  The  errors  assigned  were,  the 
admission  of  defendant's  evidence ;  and  that  the  court  erred  in  refusing 
to  instruct  the  jury,  that  the  whole  of  defendant's  evidence  did  not 
amount  to  an  equitable  defence. 

JSTorris,  for  plaintiff  in  error;  cited  :  4  Johns.  Cha.  Rep.  123;  9  Serg. 
fy  Rawle  16  ;  1  Penns.  Rep.  425;  10  Serg.  fy  Rawle  142 ;  3  Binn. 
520 ;  15  Serg.  <£•  Rawle  107 ;  1  Rawle  29  ;  2  Pick.  581  ;  3  Wash. 
C.  C.  R.70;  8  Serg.  $  Raicle  112  ;  10  Serg.  #  Rawle  33  ;  16 
Serg.  fy  Rawle  29  ;  13  Johns.  Rep.  174  ;  15  Johns.  Rep.  443  ;  17 
Johns.  Rep.  384  ;  2  Pick.  584;  8  Serg.  <$•  Rawle  452,  484  ;  13  Serg. 
<$•  Rawle  157 ;  8  Pick.  122 ;  15  Serg.  <$•  Rawk  118. 

Weidman  and  Elder,  for  defendant  in  error. 

The  opinion  of  the  Court  was  delivered  by 

GIBSON,  C.  J. — The  argument  has  brought  into  review  our  for- 
mer determination  of  this  cause,  the  defendant  insisting  on  the 
policy  of  adhering  to  precedents,  even  when  the  principle  of  them  is 
wrong.  Though  the  doctrine  of  stare  decisis  is  of  undoubted  obliga- 
tion ;  yet  there  seems  to  be  a  substantial  difference  between  changing 
an  admitted  principle,  and  overruling  a  decision  which  is  but  evi- 
dence of  it ;  the  former  partaking  of  legislation,  which  is  foreign  to 
the  business  of  the  judiciary,  while  the  latter  is  incontestably  within 
the  pale  of  its  authority.  On  this  distinction  alone  can  the  blunder 
of  a  court  of  the  last  resort  be  remedied,  even  by  awarding  a  new 
trial  for  misdirection ;  or  the  mischief  of  a  bad  precedent  be  abated. 
It  is  not  very  unusual  to  depart  from  an  erroneous  decision,  which 
has  not  yet  grown  to  be  a  rule  of  property,  especially  while  the  error 
may  be  nipped  in  the  bud,  and  its  consequences  be  arrested  in  the 
cause  in  which  it  was  committed.  Still,  when  such  a  decision  has 
gone  to  the  profession  for  the  guidance  of  their  clients,  it  ought  not 
to  be  lightly  departed  from,  even  in  the  same  cause.  But  where  it 
can  be  sustained  only  by  the  sacrifice  of  a  principle,  or  the  overthrow 
of  a  decision  more  consonant  to  the  jurisprudence  of  the  land,  it  is 
not  the  privilege,  but  the  duty  of  the  judges  to  recur  to  fundamental 
principles.  To^determine  the  fitness  of  a  case  for  such  recurrence, 
is  the  most  delicate  task  that  can  be  set  before  a  judge,  and  one 


JVw.  1832.]  OF  PENNSYLVANIA.  287 

[Geddis  v.  Hawk:] 

which  calls  for  all  his  prudence  and  discretion.  This  much,  how- 
ever, >may  be  safely  said,  that  to  doubt  of  the  propriety  of  such  re- 
currence, is  to  make  manifest  the  propriety  of  abstaining  from  it ; 
but  that  to  explode  a  pernicious  principle  founded  in  a  decision  pal- 
pably erroneous,  can  never  be  a  measure  of  doubtful  propriety. 
Before  proceeding,  in  accordance  with  these  precautionary  principles, 
to  reconsider  our  former  judgment,  it  is  proper  to  remark,  that  the 
point  on  which  it  was  made  to  turn,  was  suggested  by  the  judge 
who  delivered  the  opinion  of  the  court,  at  a  late  period  of  the  argu- 
ment, and  adopted  in  a  press  of  business  by  a  bare  majority  of  the 
bench. 

That  a  creditor  is  not  bound  to  apply  his  securities,  or  resort  to 
the  principal  in  the  first  instance,  is  a  conceded  result  of  the  prece- 
dents and  practice  of  courts  of  equity  here  and  elsewhere.  What 
more  is  there  in  the  case  to  affect"  these  obligees  1  They  incurred  no 
disability  to  sue  the  principal  obligor  ;  parted  with  no  means  of  ob- 
taining satisfaction  from  him  ;  disregarded  no  monition  of  the  surety ; 
impaired  no  security ;  nor  did  any  other  act  or  thing  which  is  usually 
supposed  to  dissolve  the  contract.  Nothing  of  the  sort  is  pretended. 
They  said  nothing  or  did  nothing  but  reform  their  imperfect  convey- 
ance— a  thing  they  were  compellable  to  do,  and  warn  a  subsequent 
purchaser  from  the  principal  debtor  of  a  lien  which  the  law  had 
created  for  the  security  of  their  debt.  It  is  said,  however,  that  in 
supplying  the  defects  of  the  original  conveyance,  they  parted  with 
the  means  of  extorting  satisfaction  from  the  principal,  or  the  pur- 
chaser under  him.  But  they  were  bound,  not  only  by  the  terms  of 
the  contract,  but  by  every  principle  of  common  honesty,  to  do  what 
accident  had  prevented  them  from  doing  effectually  in  the  first  in- 
stance. The  defect  in  the  first  conveyance  was  so  palpably  the 
effect  of  accident,  that  no  chancellor  would  have  hesitated  to  amend 
it  without  terms,  or  superadded  consideration  :  and  what  more  was 
in  fact  done  1  A.  formal  receipt  for  the  purchase  money  was  ap- 
pended, which,  it  has  been  said,  might  impair  the  lien,  or  even  dis- 
charge it,  by  having  induced  the  subsequent  purchaser  to  involve 
himself  in  responsibilities  for  the  defendant  to  third  persons,  under  a 
belief  that  the  plaintiffs  were  paid.  But  it  is  conceded  that  enough 
to  answer  the  demand  is  still  in  his  hands ;  though,  it  is  said,  he 
may  have  precluded  himself  from  a  defence  to  his  bonds  by  having 
encouraged  a  holder,  for  value,  to  take  an  assignment  of  them.  A 
decisive  answer  to  this  is,  that  there  is  no  evidence  of  any  thing  of 
the  sort  in  the  case  ;  and  a  surety  is  not  to  be  released  for  a  possible 
or  speculative  injury.  But  viewing  this  receipt,  not  as  a  duplicate 
of  that  appended  to  the  imperfect  conveyance,  as  it  really  was,  but 
as  an  original;  it  afforded  no  room  for  an  inference  of  actual  payment, 
or  of  any  thing  beyond  the  substitution  of  an  independent  security 
for  the  debt  created  by  the  contract  of  purchase.  It  is  a  notorious 
practice,  in  transactions  of  this  sort,  to  subjoin  a  receipt  for  purchase 
money,  not  paid,  but  secured  by  a  bond  or  mortgage  taken  in  satis- 


288  SUPREME  COURT  [Lancaster, 

[Geddia  r.  Hawk.] 

faction  of  the  original  contract.  It  is  not  pretended,  however,  that 
the  statutory  lien  was  gone,  but  that  the  release,  being  at  least  evi- 
dence of  payment,  might  have  embarrassed  the  surety  in  the  en- 
forcement of  the  lien,  had  he  succeeded,  by  subrogation,  to  the  own- 
ership of  it ;  and  the  interposition  of  any  perceptible  obstacle  to  his 
recovery,  on  any  one  of  the  original  securities,  is  supposed,  on  the 
authority  of  Hayes  v.  Ward,  4  Johns.  Ch.  Rep.  123,  to  operate  a  dis- 
charge of  him.  To  be  sensible  of  the  difference  between  that  case 
and  the  present,  it  is  necessary  but  to  advert  to  its  features.  A 
surety  who  had  been  arrested  in  a  neighbouring  state,  and  probably 
with  a  view  to  extort  payment  from  his  supposed  inability  to  procure 
bail,  brought  a  bill  for  an  injunction,  charging  that  a  collateral  se- 
curity taken  by  the  creditor  had  been  secretly  tainted  with  usury  by 
the  immediate  parties  to  it ;  and  the  allegation  of  this  essential  fact 
was  not  contradicted  in  the  answer.  That  collusion  with  the  princi- 
pal gives  the  surety  an  equity,  is  not  to  be  contested  ;  for  it  must 
stand  indifferent  whether  the  security,  on  the  credit  of  which  the 
surety  was  drawn  into  the  contract,  has  been  impaired  by  the  credi- 
tor subsequently,  or  in  its  concoction.  The  authorities  show  no 
difference  ;  and  the  wonder,  therefore,  is,  that  instead  of  ordering 
the  security  to  be  put  to  the  test  of  experiment,  by  an  action  on  it, 
the  creditor  was  not  perpetually  enjoined.  The  chancellor  seems  to 
have  considered  his  omission  to  answer  this  part  of  the  bill,  not  as  a 
confession  of  it,  but  a  circumstance  that  cast  a  suspicion  on  -the  re- 
spondent's title  which  it  was  incumbent  on  him  to  remove  by  a  legal 
proceeding;  and  the  business  of  doing  so  seems  not  to  have  been 
imposed  as  a  duty,  but  accorded  as  an  indulgence.  Now  what  is 
the  case  before  us  1  The  vendors  had  appended  to  the  conveyance 
the  usflal  receipt  for  the  purchase  money,  which,  though  competent 
to  go  to  a  jury,  is  destitute  of  effect,  as  evidence  of  actual  satisfac- 
tion ;  and  whether  this  were  done  before  the  relation  of  principal  and 
surety  was  constituted,  is,  on  the  principle  of  Hayes  v.  Ward,  en- 
tirely immaterial.  If  the  existence  of  such  a  receipt  alone  were  to 
discharge  the  surety,  the  intent  of  the  parties  would  be  frustrated  in 
all  cases  ;  for  the  practice  of  delivering  an  acquittance  with  the  con- 
veyance, at  one  time  supposed  necessary,  perhaps  to  release  the  title 
from  an  equitable  lien  for  the  purchase  money,  is  so  general,  as  to 
seem,  to  the  popular  apprehension,  a  formal  part  of  the  act  of  exe- 
cution. But  what  impediment  could  it  offer  to  an  action  on  a  bond, 
or  other  security,  taken  at  the  date  of  the  receipt,  or  previously  1 
The  almost  insensible  presumption  to  which  it  gives  rise,  would  be 
rebutted  by  the  universality  of  the  practice  to  which  it  owes  its  ex- 
istence. I,  therefore,  turn  from  these  considerations,  mainly  relied 
on  in  the  argument,  to  those  relied  on  by  the  majority,  of  which  I 
was  one,  in  ihe  former  decision. 

It  is  not  easy  to  ascertain,  from  the  report,  the  specific  ground  on' 
which  the  supposed  equity  was  put.  It  seems  to  have  been  taken 
for  granted  that  the  receipt  would  not  preclude  the  vendors,  or  the 


Nov.  1832.]  OF  PENNSYLVANIA.  289 

[Geddis  v.  Hawk.] 

surety  in  their  stead,  from  showing  the  lien  to  be  unsatisfied  ;  and 
that  the  subsequent  purchaser  stands,  in  relation  to  it,  as  did  the 
principal  debtor,  his  predecessor  in  the  ownership  of  the  land.  Nei- 
ther was'it  asserted  that  the  creditor  is  bound,  on  any  general  rule  of 
equity,  to  proceed  against  the  principal,  in  the  first  instance,  or  ex- 
haust a  fund  liable  to  satisfaction,  before  resorting  to  the  principal, 
or  surety,  at  his  pleasure.  The  decision  seems  to  have  been  rested 
mainly  on  a  principle  borrowed  by  the  chancellor,  in  Hayes  v.  Ward, 
from  Wright  v.  Nutt,  I  H.  Bl.  136,  on  which  last  case  we  are  forbidden 
to  rely  as  a  precedent,  and  the  foundation  of  which  it  is,  therefore,  the 
more  necessary  to  examine.  Had  the  principle  of  Wright  v.  Nutt 
not  found  its  way  into  our  jurisprudence  through  the  decision  of  a 
court  eminently  entitled  to  respect,  its  authority  would  not  now  have 
been  a  subject  of  discussion.  In  that  case  the  prayer  of  the  bill  was, 
to  be  protected  from  an  action  at  law,  till  the  creditor  should  have 
exhausted  his  means  of  obtaining  satisfaction  from  the  debtor's 
estate,  confiscated  by  an  act  of  attainder  passed  by  the  legislature 
of  Georgia,  but  subject  to  the  demands  of  those  who  were  friendly  to 
American  independence ;  to  which  class  the  prosecuting  creditor 
belonged.  An  injunction  was  granted  ;  and  the  first  thing  to  be 
remarked  is,  that  the  decree  distinctly  overruled  Holditch  v.  Mist, 
1  P.  Wms  695,  to  say  nothing  of  Kempe  v.  Jlntill,  2  Bro.  Cha. 
Rep.  11  ;  and  that  it  has,  in  turn,  been  shaken  to  its  foundation,  if 
not  overruled,  by  Wright  v.  Simpson,  6  Ves.  714.  It  is  fair,  however, 
to  say,  that  it  seems  to  have  received  countenance  in  Cottin  v.  Blane, 
1  Jlnstr.  544.  That  it  is  entitled  to  as  little  respect  on  the  founda- 
tion of  principle  as  of  precedent,  may  be  inferred  from  the  reasons 
given  in  support  of  it.  As  in  the  case  of  our  former  determination 
of  the  present  cause,  it  is  not  easy  to  ascertain  the  specific  ground  on 
which  the  decision  was  rested.  There  was  no  proof  of  collusion  be- 
tween the  creditor  and  the  American  commissioners,  even  if  there 
could  have  been  such  a  thing :  and  the  suggestion  in  the  note  to 
Kempe  v.  Jlntill,  that  the  creditor  "  had  actually  made  application, 
but  had  not  diligently  or  honestly  continued  that  application,"  affords 
no  colour  for  the  conclusion  attempted  from  it,  unless  it  be  taken  for 
granted  that  the  creditor  was  bound  to  make  the  application  in  the 
first  instance  ;  and  that  would  bring  the  argument  round  to  the 
point  from  which  it  started — an  assumption  of  the  principle  to  be 
sustained.  Subsequently  to  his  application  to  the  commissioners, 
the  creditor  had  gone  into  a  court  of  law  to  enforce  an  undisputed 
legal  right  against  the  person  of  his  debtor,  and  was  restrained  for 
no  reason,  that  I  can  discover,  but  the  existence  of  a  fund  within  hia 
power,  the  benefit  of  which  he  was  required  to  procure  in  violation 
of  the  spirit  of  his  country's  laws,  for  one  who  was  disabled  by  those 
laws  from  procuring  it  for  himself.  That  this  had  been  previously 
deemed  a  sufficient  reason  to  control  a  legal  right,  was  not  pretended. 
The  existence  of  a  pledge,  or  other  security,  had  never  been  allowed 
to  prevent  an  immediate  recourse  to  the  person  ;  and  it  certainly 
2  M 


290  SUPREME  COURT  [Lancaster, 

[Geddis  v.  Hawk.] 

could  not  make  a  difference  favourable  to  the  argument,  that  the 
pledge,  in  the  case  before  the  court,  was  not  reserved  by  the  parties, 
but  interposed  by  a  superior  power,  without  the  consent  of  the  credi- 
tor. The  decree  may,  it  seems  to  me,  be  fairly  set  down  to  the  score 
of  the  instinctive  repugnance  of  courts  of  justice  to  measures  of  vio- 
lence and  wrong,  inseparable  from  political  convulsions.  Something, 
too,  may  be  allowed  to  national  excitement  at  the  disastrous  result 
of  a  civil  war  pregnant  with  bitter  recollections.  But  though  it 
might  have  been  fair  in  the  mother  country  to  say,  "Since  you  will 
not  permit  the  demands  of  creditors  who  were  favourable  to  our  au- 
thority to  be  satisfied  out  of  the  debtor's  property  within  your  grasp, 
•  we  will  not  suffer  his  person  or  effects  to  be  molested  here,  by  those 
who  were  favourable  to  your  independence  ;"  still,  such  a  measure 
of  retaliation  would  have  come  with  a  better  grace  from  the  legisla- 
ture, than  from  the  courts.  In  fact,  a  bill  for  the  purpose  was  brought 
into  parliament,  but  dropped,  on  an  intimation  given  by  Lord  Thur- 
low,  that  the  powers  of  the  chancellor  were  adequate  to  the  object. 
A  decree  thus  produced  is  certainly  an  insecure  foundation  for  a 
permanent  principle  of  new  and  specific  equity.  But  allowing  it  the 
effect  of  a  precedent,  what  does  it  prove  1  Not  that  the  existence  of 
a  fund  which  would  be  as  accessible  to  the  surety  as  it  is  to  the 
creditor,  controls  the  right  of  resorting  to  the  person.  Such  a  doc- 
trine would  compel  the  creditor,  in  every  instance,  to  apply  his  lien 
or  other  security,  in  the  first  place,  and  exhaust  the  fund  wherever 
he  could  approach  it.  There  may  possibly  be  extreme  cases  in 
which  a  suit  at  law  would  be  restrained  as  vexatious  and  oppressive — 
as  when  the  creditor  has  but  to  hold  out  his  hand  to  receive  his  debt 
from  a  fund  in  court — but  that  is  not  our  case  ;  nor  is  it  pretended 
that  there  is  any  personal  disability,  on  the  part  of  the  surety,  to 
deprive  him  of  any  benefit  from  the  lien  which  the  creditor  himself 
could  have  from  it ;  so  that  the  groundwork  of  Wright  v.  JVwtf, 
which  suggested  the  principle  of  Hayes  v.  Ward,  is  entirely  different 
from  that  which  we  have  here. 

But  the  chancellor,  in  Hayes  v.  Ward,  declared  that  cases  of  the 
sort  are  to  be  determined,  not  on  any  rule  analogous  to  that  of  the 
civil  law,  but  on  their  special  circumstances ;  and  what  have  we 
here  to  throw  the  vendors  on  their  lien  as  a  primary  resort  1  The 
operative  one  is  said  by  the  judge  who  declared  our  opinion,  to  be 
the  warning  given  to  the  subsequent  purchaser,  of  the  existence  of 
the  lien  and  the  purpose  of  the  vendors  not  to  relinquish  it ;  which 
seems  to  have  been  considered  a  taking  to  the  land  exclusively,  that 
bound  them  on  principles  of  election,  by  reason  of  its  supposed  ten- 
dency to  lull  the  surety,  and  prevent  him  from  taking  measures  of 
security  in  respect  to  the  principal.  That  a  creditor  is  bound  to 
elect  between  friends  or  persons  concurrently  liable,  or  is  compella- 
ble  to  pursue  exclusively  the  one  to  which  he  first  has  had  recourse, 
w\|l  not  be  pretended.  In  the  movement  of  the  vendors  for  the  pre- 
servation of  tlieir  lien,  there  was  nothing  to  disarm  the  surety,  or 


JVow.  1832.]  OF  PENNSYLVANIA.  291 

[Goddis  v.  Hawk.] 

that  would  not  have  been  understood  by  a  man  of  ordinary  sagacity. 
So  far  from  holding  out  to  him  an  assurance  of  exemption,  the  no- 
tice evinced  but  a  prudent  attention  on  the  part  of  the  vendors  to  the 
preservation  of  all  their  securities.  I  will  not  say,  that  a  subsequent 
purchaser  of  a  title  derived  through  an  order  of  sale  by  the  orphan's 
court,  is  not  bound  to  take  notice  of  the  lien,  or  that  warning  him  of 
it  was  not  superfluous ;  but  the  course  pursued  was  at  least  an  honest 
one,  and  proper  to  apprise  him  that  a  part  of  the  purchase  money 
was  still  unpaid  ;  especially  as  a  formal  receipt  had  been  given  when 
the  period  of  payment  fixed  by  the  conditions  of  the  sale  had  elapsed. 
It  was  by  no  means  inconsistent  with  the  vendor's  duty  to  the  surety  : 
for  it  is  not  easy  to  see  how  the  latter  could  be  prejudiced  by  a  mea- 
sure taken  for  the  common  benefit,  and  thought,  though  perhaps 
erroneously,  to  be  necessary  to  his  protection.  I  am  not  prepared  to 
say  that  notice  was  indispensable  to  the  preservation  of  the  lien,  as 
a  knowledge  of  its  original  existence  might  be  sufficient  to  put  a 
purchaser  on  inquiry  as  to  the  fact  of  its  subsequent  extinction ;  or 
that  the  vendors  were  bound  to  more,  as  regards  the  surety,  than 
abstinence  from  positive  acts  that  would  impair  it :  but  clearly  the 
notice,  being  a  measure  of  extreme  caution,  for  the  benefit  of  all  par- 
ties, ought  not  to  have  inspired  the  surety  with  an  expectation  of 
exemption.  But  no  prejudice  was  in  fact  suffered  by  him  ;  for  it  is 
not  pretended  that  he  was  induced  to  forego  the  use  of  any  means 
to  procure  indemnity  from  the  principal ;  and  as  to  the  defendant, 
his  executor,  it  is  sufficient  that  the  assets  are  yet  in  his  hands. 
Even  were  they  not,  the  distribution  of  them,  without  having  taken 
refunding  bonds,  would  have  been  such  negligence  as  to  preclude  a 
defence  on  that  head.  Evidence  of  the  facts  contained  in  the  notice 
of  special  matter,  furnishing  as  they  did  no  substantial  defence,  ought 
therefore  not  to  have  been  admitted.  As  to  the  other  branch — that 
the  claim  was  not  preferred  within  the  period  of  the  publication  of 
notice,  fixed  by  law  for  the  creditors  to  come  in — that  would  be 
made  available  only  by  showing  the  assets  to  be  deficient,  which  is 
not  pretended.  Notwithstanding  our  repugnance  to  depart  from  a 
previous  decision,  therefore,  we  are  satisfied  that  justice  requires  the 
cause  to  be  put  before  another  jury. 

HUSTON,  J. — This  cause  has  been  before  this  court  twice  before, 
and  is  reported  in  10  and  16  Serg.  fy  Rawle.  The  decision  of  the 
court  in  the  first  report  turned  on  whether  the  bonds  in  suit  were 
joint,  or  joint  and  several,  and  is  certainly  not  free  from  difficulty. 
The  construction  there  put  on  those  bonds  is  not,  I  think,  supported 
by  any  authority;  and  the  insertion  of  the  words,  "  each  0/ws,"  after 
the  names  of  the  obligors,  is  a  liberty  with  the  contract  of  the  par- 
ties, which  courts  do  not  often  assume  ;  and  this  decision  is,  I  think, 
inconsistent  with  subsequent  cases. 

The  opinion  of  the  court  in  the  present  instance  directly  overrules 
that  given  by  this  court  in  16  Serg.  fy  Rawle;  and  does  more,  for 


292  SUPREME  COURT  [Lancaster, 

[Geddia  v.  Hawk.J 

the  facts  are  brought  before  us  in  the  present  instance  more  fully, 
than  they  were  in  that  case.  I  do  not  know  that  I  would  trouble 
the  profession  with  a  dissenting  opinion,  were  it  not  that  this  is  the 
second  instance  at  this  adjourned  court,  in  which  a  bare  majority  of 
the  court  have  overruled  a  prior  decision  in  the  same  cause.  No  doubt 
every  court  which  has  ever  existed  has  given  decisions  which,  on 
reflection,  require  correction.  Much  and  full  reflection  ought,  how- 
ever, to  be  given  by  the  court  which  overrules  a  prior  decision  of  its 
own,  given  in  the  same  cause,  between  the  same  parties,  on  the  same 
facts.  This,  says  chancellor  Kent,  ought  never  to  be  done,  but  on 
the  most  cogent  reasons.  In  the  present  case  the  facts  are  not  the 
same,  but  where  they  differ  they  make  a  stronger  case  for  the  de- 
fendant. After  the  plaintiff  had  read  his  two  bonds,  payable  on  the  1st 
of  April  1814,  and  on  the  1st  of  April  1815,  and  the  receipts  indorsed 
on  them,  he  rested. 

The  defendants  then  gave  in  evidence  the  petition  of  the  heirs  of 
John  Carper,  praying  for  a  sale  of  the  lands  of  said  John,  which  had 
been  valued,  and  which  his  heirs  had  refused  to  take  at  the  valua- 
tion. The  court  ordered  said  lands  to  be  sold  on  the  16ih  of  March 
1810,  on  the  following  conditions  ;  one  half  the  purchase  money  to  be 
paid  in  hand,  and  the  residue  in  jive  equal  annual  payments.  At  an 
orphan's  court,  1st  of  May  1810,  the  administrators  reported  a  sale 
to  Jldam  Hawk  of  one  hundred  and  sixty-seven  acres  and  ninety-one 
perches,  at  26  pounds  7  shillings  and  6  pence  per  acre — and  other 
parcels  to  different  purchasers.  "  Jill  sold  on  the  terms  in  said  order 
prescribed"  The  report  was  approved,  and  the  court  decreed  "  that  the 
sale,  so  as  aforesaid  made,  be  and  remain  firm  and  stable  for  ever." 
Not  one  word  about  when  the  deed  was  to  be  made,  in  the  record. 

The  record  then,  as  presented  to  us  in  the  paper  book,  states,  that 
defendants  offered  in  evidence  the  matters  contained  in  the  notice  of 
special  matter. 

It  will  be  observed,  that  this  does  not  purport  to  be  the  whole  of 
the  offer,  but  only  the  part  objected  to.  What  the  rest  was  we  know 
not.  After  the  court  had  received  the  testimony  so  offered,  the  de- 
fendants gave  in  evidence  the  records  of  common  pleas  of  Lebanon 
county  of  the  5th  of  August  and  7th  of  November  1832,  showing 
the  discharge  of  Jldam  Hawk  as  an  insolvent  debtor. 

The  plaintiff  then  gave  in  evidence  the  will  of  Michael  Hawk, 
dated  14th  of  September  1813,  and  probate  in  1815;  and  called  John 
Gloninger,  who  proved  that  he  drew  the  deed  from  the  administra- 
tors of  John  Carper  to  Jldam  Hawk  in  March  1817  ;  that  he  believed 
no  money  was  then  paid ;  that  it  is  usual  to  give  receipts  such  as 
this  when  bonds  are  taken  for  the  gales  ;  that  he  saw  no  bonds ;  that 
in  drawing  the  deed  from  Adam  Hawk  to  Witmer  he  discovered  the 
defect  in  a  former  deed  to  Jldam  Hawk,  drawn  by  Hollingsworth,  that 
contained  no  words  of  grant,  &c. ;  and  informed  the  parties  that 
Jldam  Hawk  and  his  counsel  directed  him  to  draw  another  deed  from 
Carper's  administrators  to  Jldam,  which  he  did,  and  the  administra- 


1832.]  OF  PENNSYLVANIA.  293 

[Geddis  v.  Hawk.] 

tors  came  and  executed  the  deed  willingly  without  making  any  ob- 
jection. After  stating  something  not  material  about  Michael  Hawk's 
will,  he  said  the  receipt  would  imply  that  some  money  was  paid  at 
the  time  of  executing  the  deed.  (By  referring  to  the  deed,  the  receipt 
was  in  these  words,  "  Received  on  and  before  the  date  of  the  within 
written  indenture  from  the  within  named  Jldam  Hawk  the  sum  of 
4700  pounds  17  shillings  and  6  pence  lawful  money  of  Pennsyl- 
vania, it  being  the  full  consideration  money  on  the  said  indenture 
mentioned."  Signed  by  the  three  administrators.)  But  he  remem- 
bered nothing  of  any  being  paid.  "  There  was  nothing  said  about 
the  purchase  money  being  unpaid."  He  then  proved  something 
about  the  bond  of  indemnity  given  by  Jldam  Hawk,  Martin  Thomas, 
and  John  Wolfersberger  to  P.  Witmer,  which  bond  was  read,  dated 
3d  of  April  1817,  the  same  day  as  the  deed  of  A.  Hawk  to  Witmer. 
The  plaintiff  then  gave  in  evidence  again  the  full  record  of  the  pro- 
ceedings in  the  orphan's  court  of  Dauphin  county  respecting  John 
Carper's  lands. 

It  was  then  admitted  by  the  parties,  that  about  4000  dollars  were 
retained  by  Witmer  after  Geddis's  notice  to  him — say  two  bonds  of 
738  pounds  2  shillings  and  6  pence  each,  payable  in  1819  and  1820; 
and  it  was  stated  in  court  during  the  argument,  that  Witmer  attended 
in  court  at  this  and  the  last  trial  with  the  money  in  silver. 

The  plaintiff  gave  also  in  evidence  the  record  of  two  suits,  No.  15 
and  16,  of  November  term  1818,  by  the  administrators  of  Carper 
against  Mam  Hawk,  and  judgments  thereon  ;  and  also  gave  in  evi- 
dence certain  judgments  against  Jldam  Hawk,  to  which  they  con- 
tended the  bond  of  indemnity  applied;  and  offered  and  tendered  to 
defendant  an  assignment  of  the  rights  of  the  plaintiff  against  the 
fund  fixed  by  the  sale  in  the  orphan's  court,  dated  7th  of  August 
1829. 

The  defendant  gave  in  evidence  the  record  of  two  suits,  No.  23 
and  24,  of  November  1821,  discontinued.  These,  I  understand,  were 
a  scire  facias,  and  an  ejectment  by  the  present  plaintiff  against 
Witmer. 

Many  points  were,  according  to  our  custom,  submitted  to  the 
court ;  but  in  the  argument  here,  the  counsel  said  they  would  rely 
on  the  bills  of  exception  to  testimony  and  the  eleventh  point. 

The  eleventh  point  was,  "  that  from  the  evidence  given  at  the 
trial,  and  from  the  tender  now  made  by  Robert  Geddis  and  Samuel 
Carper,  of  the  assignment,  by  their  deed,  of  all  their  right  and  their 
remedies  to  the  administrators  of  Michael  Hawk,  to  substitute  him 
in  their  place,  and  clothe  him  with  all  their  securities  relating  to 
the  real  fund,  and  from  their  offer  to  file  this  deed  of  assignment 
under  the  direction  of  the  court  of  record  in  this  cause,  upon  their 
obtaining  a  verdict,  either  conditional  or  absolute  :  from  all  this  evi- 
dence, and  from  this  tender,  the  plaintiffs  are  entitled  to  an  absolute 
verdict." 

This  was  answered  by  the  court,  by  saying,  that  from  all  the 


294  SUPREME  COURT  [Lancaster, 

[Geddia  v.  Hawk.] 

evidence  stated  in  the  point,  together  with  the  tender  of  the  deed  of 
assignment,  the  plaintiffs  were  not  entitled  to  an  absolute  verdict,  if 
the  jury  should  be  of  opinion  that  Michael  Hawk  was  only  a  surety 
in  the  bond. 

This  brings  the  cause  to  the  third  error  assigned,  viz.  that  in  the 
(rial  of  this  cause  in  the  court  below,  the  equity  and  the  law  of  the 
land  have  been  manifestly  departed  from  in  the  charge  of  the  court 
and  verdict  of  the  jury,  and  in  the  opinion  of  the  court  in  refusing 
to  exercise  their  peculiar  and  exclusive  power  to  vindicate  and  pre- 
serve the  law  of  the  land  from  invasion  and  violation  by  a  jury. 

It  may  be  admitted,  that  both  at  law  and  in  equity  the  situation 
of  sureties  is  materially  different  from  what  it  was  less  than  a  cen- 
tury ago.  At  law,  all  who  signed  the  bond  or  writing  were  consi- 
dered equally  principals,  and  no  averment  that  one  was  surety  was 
admitted.  I  do  not  know  that  at  present  any  judge  or  lawyer  would 
say,  it  may  not  be  proved  that  one  of  the  obligors  was  a  surety ;  and 
that  certain  acts  of  the  obligee  will  discharge  a- surety,  which  would 
not  discharge  a  principal.  Theobald  on  Principal  and  Surety  117 — 
130;  17  Johns.  Rep.  391. 

Even  in  chancery,  I  think  Lord  Hardwicke  refused  to  interfere  for 
a  surety  in  a  manner  which  is  now  so  much  the  course  of  that  court 
that  no  man  would  question  it.  Certain  acts  of  the  obligee  seem 
to  be  admitted  everywhere  as  amounting  to  a  discharge  of  a  bail 
warranty ;  but  what  will  amount  to  such  act  is  not  exactly  agreed 
upon  in  all  courts. 

The  following  may  perhaps  safely  be  stated  as  a  part  of  the  cases 
in  which  a  surety  is  discharged  by  the  act  of  the  creditor. 

Where  the  principal  is  discharged  either  totally  or  on  paying  a 
part,  the  surety  is  discharged;  and  in  equity,  an  agreement  to  dis- 
charge the  principal,  and  an  assignment  by  the  principal  in  pursu- 
ance of  such  agreement,  discharges  the  surety,  though  no  release  of 
the  principal  be  actually  executed.  Theobald  on  Principal  and 
Surety  114,  115,  116. 

Where  the  parties  (that  is,  creditor  and  principal)  make  any  new 
agreement  inconsistent  with  the  terms  of  the  original  one  ;  or  if  they 
agree  to  make  any  alteration,  either  in  the  terms  of  the  original 
agreement  or  in  the  mode  of  performing  them,  without  the  consent 
of  the  surety;  the  surety  is  discharged  (Theobald  1 19  to  122) :  and  the 
court  are  not  to  inquire  minutely  what  injury  the  surety  sustained, 
it  is  enough  that  he  might  have  been  prejudiced;  and  they  are  not 
to  inquire  what  injury  he  did  or  will  sustain.  Theobald  123  to  131. 

Where  the  creditor,  without  the  consent  of  the  suiety,  agrees  to 
give  time  to  the  principal,  the  surety  is  discharged.  Theobald  127, 
180  to  182.  It  is  not,  however,  the  law,  that  the  bare  negative  act 
of  refraining  from  suit ;  but  some  agreement  of  the  creditor  which 
ties  his  hands  and  prevents  him  for  a  time  from  suing ;  which  dis- 
charges the  surety.  Theobald  136;  Cope  v.  Smith,  8  Serg.  fy 
Rawle  112. 


Nov.  1832.]  OF  PENNSYLVANIA.  295 

[Geddis  v.  Hawk.] 

Where  the  creditor  parts  with  securities,  or  any  fund  which  he 
would  be  entitled  to  apply  in  discharge  of  the  debt,  the  surety  is 
exonerated,  at  least  to  the  extent  of  such  securities;  because  secu- 
rities which  the  creditor  is  entitled  to  apply  in  discharge  of  his  debt, 
he  is  bound  either  so  to  apply,  or  to  hold  them  as  a  trustee,  ready  to 
be  applied  should  the  surety  desire  it.  Theobald  143;  8  Serg.  fy 
Rawle  452  to  458.  And  this  continues  if  there  be  two  judgments 
against  principal  and  surety.  8  Serg.  fy  Rawle  458;  Union  Bank  v. 
George,  5  Peters  99.  And  this  principle  is  put  in  stronger  and  more 
appropriate  terms  by  the  chief  justice  in  13  Serg.  fy  Rawle  159. 
Where  the  creditor  has  the  means  of  satisfaction,  either  actually  or  poten- 
tially in  his  hands,  and  does  not  choose  to  retain  it,  the  surety  is  dis- 
charged. 

On  this  same  principle,  this  court,  in  Commissioners  of  Berks 
v.  Ross,  3  Binn.  520,  decided,  that  the  agreement  to  permit  a  prin- 
cipal debtor  who  had  been  arrested,  to  enter  common  bail,  in  con- 
sequence of  which  tie  left  the  state,  discharged  the  sureties. 

The  same  principle  goes  to  discharge  a  surety,  where  certain  things 
are  by  the  agreement  stipulated  to  be  done,  which  would  benefit  the 
security  or  lessen  his  risk,  and  the  creditor  neglects  to  have  these 
things  done.  Theobald  146,  147.  Much  more  will  it  apply  where 
the  creditor  actually  gives  up  what  existed  at  the  time  of  the  engage- 
ment of  the  surety. 

When  a  surety  cannot,  in  a  direct  manner,  or  in  his  own  person, 
obtain  the  benefit  of  securities  or  funds  which  are  by  the  agreement 
set  apart  for  the  creditor,  equity  will  restrain  the  creditor  from  pro- 
ceeding against  the  surety  until  he  has  resorted  to  these  funds. 
Theobald  256  ;  Hayes  v.  Ward,  4  Johns.  Cha.  Rep.  123. 

I  could  cite,  without  much  trouble,  many  other  authorities,  but 
they  will  be  found  in  the  books  and  cases  referred  to,  and  some  others 
I  shall  mention.  The  modern  doctrine,  and  that  of  common  justice 
and  common  sense,  is,  that  there  is  an  understanding  in  all  cases, 
that  the  creditor  ought  to  look  to  the  principal,  and  not  unnecessarily 
to  the  surety  :  that  he  is  at  least  bound  not,  in  any  the  slightest  de- 
gree, by  any  act  of  his,  to  lessen  the  security  of,  or  otherwise  do 
injury  to  a  surety. 

Courts  of  equity,  says  Judge  Spencer,  17  Johns.  Rep.  392,  394, 
when  they  interpose  to  compel,  at  the  instance  of  a  surety,  a  creditor 
to  sue  the  principal,  undoubtedly  proceed  on  the  sound  and  just  prin- 
ciple, that  it  is  the  duty  of  the  creditor  to  obtain  payment  of  the 
principal  debtor,  and  not  of  the  man  who  is  a  mere  surety.  In  every 
such  case,  a  court  of  equity  proceeds  on  the  pre-existing  equitable 
obligation,  binding  on  the  conscience  of  the  creditor,  to  exert  him- 
self to  obtain  payment  from  the  real  debtor,  who  ought  to  be 
coerced  to  pay  it.  And  again  he  says,  where  is  the  man  who  will 
boldly  avow  the  unjust  and  immoral  principle;  that,  after  his  debt 
has  become  due,  and  he  has  been  solicited  by  the  surety  to  proceed 
and  collect  it,  he  will  abstain  from  suing,  with  a  view  of  favouring 


296  SUPREME  COURT  [Lancaster, 

[Gcddis  y.  Hawk.] 

the  principal  and  throwing  the  loss  on  an  innocent  man,  who  from 
motives  of  friendship  or  humanity  became  a  surety.  Theobald's  trea- 
tise is  replete  with  the  same  doctrine.  The  supreme  court  of  the 
United  States  say,  in  Bank  v.  Gracy,  5  Peters  114,  there  is  a  moral 
obligation  resting  on  the  bank  to  do  the  very  thing  their  attorney 
stipulated  to  do,  i.  e.  to  issue  execution  against  the  principal.  Every 
consideration  of  justice  and  equity,  in  a  moral,  though  not  in  a  legal 
point  of  view,  called  on  them  to  use  due  diligence  to  obtain  satisfac- 
tion of  the  debt  from  the  principal,  before  recourse  was  had  to  the 
surety. 

Let  us  now  compare  some  of  these  principles,  and  apply  them  to 
the  facts  of  this  case.  It  must  be  observed,  that  no  one  part  of  the 
proceedings  in  the  orphan's  court  to  procure  the  sale,  nor  the  order 
or  decree  of  the  court,  say  one  word  about  the  time  when  a  deed  was 
to  be  made  by  the  administrators.  The  act  of  assembly  of  2d  April 
1804,  sect.  11,  directs  that  "the  court  shall  confirm  the  sale  and 
decree  the  estate  in  the  premises  so  sold,  to  be  transferred  and  vested 
in  such  purchaser,  as  fully  as  the  intestate  held  the  same  at  his  de- 
cease, subject  and  liable  to  the  payment  of  the  purchase  money,  according 
to  the  terms  prescribed  by  the  court  in  the  order  of  sale."  The  bonds 
were  given  on  the  1st  of  April  1810.  The  first  deed  drawn  by  Hol- 
lingsworth,  and  which  was  defective,  and  seems  to  be  admitted  to 
have  been  inoperative  as  a  deed,  was  not  made  till  the  6th  of  April 
1811.  The  three  first  payments  seem  to  have  been  made;  but  those 
due  the  1st  of  April  1814  and  1815,  were  unpaid.  Two  years  after 
the  last  was  due,  Adam  Hawk  agreed  to  sell  to  Witmer,  and  calls  on 
the  administrators  for  another  deed.  They  were  under  no  obligation 
to  make  him  a  deed  until  the  money  was  paid ;  had  entered  into  no 
contract  binding  themselves  to  make  him  one.  The  money  had 
been  due  two  or  three  years,  and  ought  to  have  been  collected  and 
paid  to  the  heirs  of  Carper.  Michael  Hawk,  the  surety,  had  been 
dead  two  years,  and  his  executors  had  given  the  notice  prescribed  by 
law,  to  them  if  they  claimed,  and  to  all  claimants  against  his  estate, 
to  produce  their  demands.  In  the  face  of  all  this  they  make  a  deed 
and  give  a  receipt,  that  on  that  day  and  before  they  had  received  the 
whole  purchase  money,  &c.  The  purchaser  could  not  have  supported 
a  suit  at  law  for  not  making  the  deed  until  he  paid  or  tendered  the 
purchase  money.  No  case  has  been  cited  to  show  that  a  chancellor 
would  have, decreed  a  deed,  and  no  dictum  referred  to  ;  no  principle 
stated  on  which  it  can  be  predicated  that  he  would  have  so  decreed. 
The  making  the  deed,  whether  we  refer  to  the  first  in  1811,  or  to 
the  second  in  1817,  was,  as  much  as  in  them  lay,  giving  up  the  power 
they  had  to  compel  the  payment  of  the  purchase  money.  The  title 
was  in  them ;  the  power  to  compel  the  payment  out  of  the  8000 
dollars  paid  in  hand  by  Witmer  was  in  them ;  and  they  carelessly,  or 
wantonly,  or  wickedly  refused  to  exercise  it;  and  it  seems  to  me  to 
fall  within  the  spirit  of  many  of  the  authorities  cited,  and  within  the 
very  words  of  the  present  chief  justice  in  Lightenthaler  v.  Thomp- 


Nov.  1832.]  OF  PENNSYLVANIA.  297 

[Geddis  v.  Hawk  ] 

son,  13  Serg.  <$•  Rawle  159;  where  the  creditor  has  either  actually  or  po- 
tentially the  means  of  satisfaction  in  his  hands  and  does  not  retain  it,  the 
surety  is  discharged.  One  word  would  have  produced  the  money. 
I  do  not  say  the  land  does  not  continue  liable  for  this  money  in  the 
hands  of  Witmer.  It  is  not  necessary  to  decide  on  that  point ;  to  a 
certain  extent  it  is  liable.  The  record  is  not  full  in  that  part  which 
relates  to  Witmer;  it  states  that  he  has  retained  4000  dollars,  but  it 
was  stated  by  the  counsel  on  both  sides,  I  think,  in  addition,  that 
Witmer,  at  every  trial  of  this  cause,  had  attended  in  court  with  his 
money  in  silver.  If  this,  or  part  of  it  is  so,  there  may  be  a  question 
whether  interest  can  be  recovered  from  Witmer.  And  if  he  has  been 
ready  to  pay  his  money  from  1822,  and  brought  it  into  court,  (though 
that,  except  in  one  point  of  view,  may  be  immaterial  in  this  cause), 
it  may  be  found  impossible  to  recover  interest  from  him.  And  who 
is  to  lose  that  interest,  the  defendants  or  the  plaintiffs  1  The  plain- 
tiffs have  varied  the  situation  of  the  parties,  and  by  so  doing  have 
discharged  the  defendant ;  and  we  are  not  to  enter  into  disquisitions 
as  to  how  far  that  alteration  will  affect  them. 

In  one  point  of  view  this  case  presents  a  novelty.  By  the  order 
of  the  court,  and  the  terms  of  the  act  of  assembly,  which  forms  the 
contract,  the  land  was,  and  perhaps  is,  bound  to  pay  this  money. 
The  owner  of  the  land  is  notified  of  this  by  the  plaintiffs,  and  told  he 
will  be  held  liable,  and  forbidden  to  pay  any  more  to  Mam  Hawk, 
He  retains  his  money  for  the  plaintiffs ;  he  keeps  it  ready ;  but  Adam 
Hawk,  or  those  to  whom  Mam  Hawk  had  assigned  Warner's  bond, 
forbid  him  to  pay  to  plaintiffs :  and  perhaps  he  is  right  in  not  paying 
till  a  judgment  against  him  in  favour  of  plaintiffs.  The  plaintiffs  say 
and  insist,  that  Witmer  is  liable,  and  that  the  defendants  can,  after 
paying,  recover  from  him.  Yet  the  plaintiffs,  who  insist  he  is  liable, 
nave  twice  sued  him,  and  twice  discontinued  their  suits ;  once  after 
the  opinion  of  this  court  on  facts  not  so  full  for  the  defendants  as 
appeared  at  this  trial.  Did  the  plaintiffs  feel  it  their  duty,  in  order  to 
reach  a  surety,  to  discontinue  twice  against  the  principal  1  or  did 
they  feel  it  their  duty  to  obtain  from  this  court  a  reversal  of  its  former 
decision,  lest  they  should  be  guilty  of  the  sin  of  collecting  money 
from  the  real  debtor  and  proper  fund]  or  is  there  some  wilful  or  some 
fraudulent  design  to  oppress  the  defendants,  and  favour  Witmer  or 
those  who  hold  Witmer>s  bond  1  In  Cope  v.  Smith,  8  Serg.  fy  Rawle 
118,  Chief  Justice  Tilghman  intimates  that  there  may  be  cases  of  such 
collusion  by  a  creditor  as  would  discharge  a  surety.  And  if  a  jury 
would  find  that  some  such  collusion  existed  in  this  case,  it  could  not 
be  said  they  found  without  evidence. 

The  counsel  for  plaintiffs,  in  concluding,  told  us,  if  plaintiffs  were 
sent  to  Peter  Witmer,  they  would  be  delayed  and  perhaps  defeated ; 
but  that  the  defendants  could  recover  from  him  at  once.  I  cannot 
understand  this,  or  if  1  do  understand  it,  it  must  mean  that  the  plain- 
tiffs will  lose  the  interest  in  a  suit  against  Witmer,  or  that  Witmer 
2  N 


298  SUPREME  COURT  [Lancaster, 

[Goddis  v.  Hawk.] 

can  prove  something  against  the  plaintiffs  more  than  we  know:  per- 
haps I  don't  understand  it  at  all. 

It  is  now  twenty-two  years  since  the  sale.  Will  the  lien  for  the 
purchase  money  continue  for  ever  1  There  was  no  offer  to  bring 
suit,  or  to  permit  the  defendants  to  bring  suit,  until  during  this  trial. 
If  the  conduct  of  the  plaintiffs  in  varying  the  situation  of  the  parties, 
in  giving  up  the  power  of  compelling  payment  by  returning  the  deed, 
of  releasing  the  lien  as  far  as  in  their  power,  of  refusing  to  apply  to 
the  proper  and  peculiar  fund,  or  permitting  the  defendants  to  resort 
to  it,  do  not  estop  the  plaintiffs  from  an  absolute  verdict  in  this  case  ; 
it  must  be,  as  it  seems  to  me,  because  the  law  of  the  whole  civilized 
world,  as  administered  for  the  last  fifty  years,  is  to  be  changed. 

But  another  matter  was  much  urged  during  this  cause.  Not  content 
with  insisting  that  this  court  had  mistaken  the  law,  juries  generally, 
and  especially  those  of  Lebanon  county,  were  assailed  ;  and  not  only 
juries,  but  courts  who  did  not  control  them,  and  keep  them  under 
proper  subjection  as  to  their  power  over  facts.  On  this  subject  I  have 
neard  much,  and  had,  as  lawyer  and  judge,  nearly  forty  years  ex- 
perience. Of  perverseness  and  prejudice  in  successive  juries  in  find- 
ing against  the  right  and  law  of  the  case,  I  have  heard  much,  but  I 
know  nothing.  I  have  seen  verdicts  set  aside,  and  rightly,  and 
where  there  is  no  dispute  as  to  facts,  and  the  jury  undertake  to  find 
the  law  in  opposition  to  the  courts,  they  are  always  rightly  set  aside. 
But  I  neither  know,  nor  ever  heard  of  successive  juries  doing  so  in 
any  case.  A  single  jury  may  have  done  so,  but  it  is  a  rare  occur- 
rence ;  and  for  once  that  I  have  known  a  jury  undertake  to  decide 
the  law  in  opposition  to  the  court,  I  have  known  ten  cases  where  the 
court  drew  different  conclusions  of  facts  from  the  jury,  and  in  at  least 
nine  out  of  ten  of  such  cases  the  jury  were  right  and  the  court 
wrong.  A  court  which  undertakes  to  control  a  jury  as  to  the  credi- 
bility of  witnesses,  or  as  to  the  facts  or  inferences  from  the  testimony 
in  a  cause,  is  as  much  out  of  its  duty  as  a  jury  who  undertake  to 
overrule  the  court  as  to  matters  of  law. 

I  do  not  know  what  is  meant  by  the  phrase,  that  in  our  equitable 
jurisdiction  the  jury  find  the  facts  and  then  the  court  decide  the 
law  ;  I  know  the  constant  and  necessary  practice,  but  those  who  use 
the  same  phrase,  seem  to  mean  something  different ;  they  say  they 
mean  something  different.  If  it  be  meant  that  the  jury  must  go  out 
and  find  the  facts,  and  come  in  and  state  them  to  the  court,  who  are 
then  to  decide  the  cause ;  it  means  what  is  impracticable  and  absurd. 
Under  our  present  practice,  that  the  court  states  the  law  and  the 
jury  retire  and  find  their  verdict,  whether  in  legal  or  equitable  con- 
tests, I  believe  justice  is  as  well  administered  in  this  state  as  in  any 
part  of  the  world.  Some  more  equitable  authority  ought  to  be  given 
in  a  few  cases;  but  of  all  the  modes  which  have  been  proposed  of 
improving  our  judiciary  system,  any  one  which  restrains  the  weight 
and  power  of  juries,  as  I  have  seen  it  exercised,  would  be  the  last  in 
which  I  would  concur. 


JVot>.  1832.]  OF  PENNSYLVANIA.  299 

[Geddis  v.  Hawk.] 

Our  usage  and  law  is,  that  a  party  may  give  in  evidence  the  facts 
on  which  he  relies  as  an  equitable  defence :  these  facts  may  be  the 
testimony  of  persons  who  saw  and  heard  the  whole  of  the  transac- 
tions, or  of  the  agreement  of  the  parties  in  writing,  or  it  may  be  of 
facts  and  circumstances,  admissions,  &c.,  from  which  a  jury  infer 
that  certain  facts  took  place  or  agreements  were  made  ;  in  other 
words,  it  may  consist  of  direct  or  circumstantial  testimony.  I  do 
not  understand,  perhaps,  what  is  meant  by  a  case  calling  for  strict 
proof.  If  it  means  that  circumstantial  proof  from  which  a  jury  can 
and  do  infer  a  fact,  is  not  equal  to  positive  proof  of  that  fact,  I  deny 
it  to  be  law.  There  is  no  possible  case  in  civil  or  criminal  law  in 
which  any  fact  may  not  be  made  out  by  circumstantial  as  well  as 
direct  proof;  except,  perhaps,  where  a  positive  legislative  enactment 
requires  a  specific  kind  of  evidence  ;  and  the  power  of  the  jury  is 
peculiarly  their  own  in  determining  on  evidence,  all  or  a  part  of 
which  is  circumstantial.  These  observations  may  not  appear  perti- 
nent to  the  record  in  this  case,  but  were  required  by  the  course  of 
argument  in  the  case. 

I  am,  then,  of  opinion,  that  the  whole  of  the  evidence  was  rightly 
admitted.  That  unless  the  facts  on  which  an  equitable  defence  is 
founded  go  to  a  jury,  our  equitable  jurisdiction  is,  to  all  useful  pur- 
poses, at  an  end.  That  it  may  be  possible  for  a  court  in  some  cases 
to  say  a  priori,  Your  proof,  if  given,  will  not  amount  to  a  defence : 
yet  there  are  few  such  cases  come  into  court,  and  this  is  not  one  of 
them.  No  counsel  can  state  precisely  what  a  dozen  witnesses  will 
state  ;  no  court  has  the  right  to  judge  of  the  credit  of  each  of  those 
witnesses,  or  to  select  what  it  will  believe  and  what  it  will  reject. 
The  jury  is  an  essential  part  of  our  judiciary — no  court  will  long  con- 
tinue to  assume  the  functions  of  a  jury,  and  none  ought  to  be  per- 
mitted to  do  so. 

I  am  further  of  opinion,  that  if  the  jury  found  the  facts  in  a  certain 
way,  there  was  a  valid  defence  in  law  and  equity,  and  the  judgment 
ought  to  be  affirmed. 

Judgment  reversed,  and  a  venire  de  novo  awarded. 


300  SUPREME  COURT  [Lancaster, 


Stauffer  against  The  Commissioners. 

A  lien  is  a  necessary  and  inseparable  incident  of  seizure  in  execution,  by  the 
principles  of  the  common  law.  A  treasurer's  warrant,  therefore,  against  a  delinquent 
collector  of  taxes,  levied  on  his  real  estate,  creates  a  lien  thereon,  which  will  have 
priority  to  subsequently  entered  judgments,  and  a  sale  of  the  estate  upon  such  pro- 
ceeding will  vest  in  the  purchaser  a  good  title. 

WRIT  of  error  to  the  district  court  of  Lancaster  county.  Hays, 
president. 

Ejectment  by  The  Commissioners  of  Lancaster  County  against 
George  Stauffer,  for  a  house  and  lot  in  the  city  of  Lancaster. 

George  Stauffer  had  been  a  collector  of  county  tax  for  the  city  of 
Lancaster,  for  the  years  1824,  1825  and  1826.  On  the  3d  of  Sep- 
tember 1825,  the  county  treasurer  entered  in  the  office  of  the  pro- 
thonotary,  a  transcript  of  a  balance  due  by  Stauffer  to  the  county,  of 
2339  dollars  and  15  cents.  On  the  27th  of  June  1829,  the  treasurer 
issued  three  several  warrants,  directed  to  the  sheriff,  against  Stauffer, 
for  balances  due  in  the  years  1824,  1825  and  1826,  respectively, 
amounting,  in  all,  to  2719  dollars  and  39  cents  ;  by  virtue  of  which 
the  sheriff  levied  on  the  house  and  lot  in  controversy.  The  treasurer 
issued  warrants,  commanding  the  sheriff  to  sell  the  property  levied, 
and  it  was  sold,  and  conveyed  to  the  commissioners  of  the  county. 
When  the  deed  was  offered  for  acknowledgement,  in  court,  the  26th 
of  November  1829,  it  was  objected  to  by  the  judgment  creditors  of 
Stauffer,  but  the  objections  were  overruled,  and  the  deed  acknow- 
ledged. From  the  13th  of  July  1829  until  the  21st  of  September 
1829,  several  judgments  were  entered  against  George  Stauffer;  upon 
one  of  them,  in  favour  of  Christopher  Hager,  a  fi.  fa.  was  issued  to 
January  term  1830  ;  by  virtue  of  which  the  same  house  and  lot  was 
levied  ;  and  upon  a  vend,  expos.,  subsequently  issued,  it  was  sold  to 
Emanuel  C.  Reigart,  who  now  claims  the  same.  From  these  facts 
the  question  arose,  whether  the  proceedings  under  the  treasurer's  and 
commissioners*  warrants  gave  a  good  title  to  the  plaintiffs,  and  the 
court  below  was  of  opinion  that  they  did,  and  gave  judgment  accord- 
ingly, which  was  the  subject  of  the  only  exception  argued. 

Reigart,  for  plaintiff  in  error,  cited  the  act  of  1724,  1  Dall.  Laws 
218,  and  3  Yeates  50,  where  that  act  received  a  judicial  construc- 
tion, which  probably  gave  rise  to  the  act  of  the  lith  of  April  1799. 
This  being  a  question  between  creditors,  and  the  plaintiff's  title  de- 
pendent upon  lien,  it  is  only  necessary  to  inquire  whether  the  war- 
rants of  the  treasurer  created  such  a  lien  upon  the  property,  as  that 
a  title  might  be  founded  upon  it.  There  is  no  statute  which  au- 


JVov.  1832.]  OF  PENNSYLVANIA.  301 

[Stauffer  v.  The  Commissioners.] 

thorises  such  a  lien  ;  and  public  convenience  and  safety  require  that 
our  courts  should  persevere  in  the  course  which  they  have  hereto- 
fore pursued,  to  discountenance  constructive  liens.  7  Serg.  <$*  Rawle 
72  ;  13  Serg.  #  Rawle  227 ;  16  Serg.  #  Rawle  17,  412 ;  9  Serg. 
#  Rawle  109. 

Long,  for  defendant  in  error,  whom  the  court  declined  to  hear. 

PER  CURIAM. — The  transcript  directed  by  the  sixteenth  section  of 
the  act  of  1799,  was  put  on  the  footing  of  a  judgment,  in  order  to 
give  notice  of  the  existence  of  the  lien,  and,  perhaps,  to  create  it ; 
but  it  was  not  intended  to  operate  as  a  judgment,  in  order  to  found 
the  process  of  execution,  which  would,  in  that  aspect,  have  been 
directed  to  issue  from  the  court,  and  not  from  the  treasurer.  There 
is  nothing  to  show  that  the  treasurer  might  not  seize  and  sell  with- 
out any  transcript  at  all,  provided  the  property  remained  unincum- 
bered  in  the  hands  of  the  collector.  And  why  should  not  the  seizure 
create  the  same  lien  which  is  incident  to  every  process  of  execution 
at  the  common  law  ?  Because,  say  the  subsequent  creditors,  there 
can  be  no  other  lien  than  the  one  created  by  the  act  of  assembly. 
That  lien  was  created  to  enable  the  commissioners  to  indulge  the 
delinquent  for  the  period  limited,  without  jeoparding  the  debt,  and 
to  give  them  time  to  take  such  measures  as  might  be  reasonable,  in 
order  to  turn  the  property  to  the  best  account,  but  not  to  provide  the 
securing  of  it  after  seizure.  For  that  purpose,  a  lien  is  a  necessary 
and  inseparable  incident  of  seizure  in  execution,  by  the  principles  of 
the  common  law.  Property  levied  is  in  the  custody  of  the  law,  the 
end  of  which  might  be  prevented  if  creditors  could  subsequently 
acquire  a  paramount  interest  in  it.  In  regard  to  chattels,  this  un- 
doubtedly holds,  so  far  as  to  afford  the  creditor  an  opportunity  to 
obtain  satisfaction,  by  a  reasonable  pursuit  of  his  remedy ;  and  it 
equally  holds  in  respect  to  land,  which,  with  us,  is  a  chattel  for  the 
payment  of  debts.  The  lien  of  a  testatum  execution  has  no  other 
foundation  ;  and,  as  regards  the  expired  lien  of  a  judgment,  within 
the  county,  it  is  not  to  be  doubted  that  an  execution  levied  would, 
under  the  same  limitation,  create  a  new  lien,  though  it  may  not, 
under  the  last  act  of  assembly,  continue  or  extend  the  old  one.  By 
this  is  meant,  that  the  levy  would  protect  the  property  for  a  reason- 
able time,  under  the  process  of  execution.  That  case  is  strictly 
analogous  to  the  present,  in  which,  though  intervening  incumbrances 
would  come  in  between  the  expiration  of  the  original  lien,  yet  the 
incidental  lien  of  the  latter  is  not  to  be  displaced  by  subsequent  in- 
cumbrances, without  gross  delay  on  the  part  of  the  treasurer,  in  the 
prosecution  of  the  remedy. 

Judgment  affirmed. 


302  SUPREME  COURT  [Lancaster, 


Longenecker  against  Zeigler. 

A  creditor  having  obtained  a  judgment  for  his  debt,  subsequently  received  pay- 
ments from  his  debtor,  which  were  not  credited  upon  the  judgment :  the  defendant's 
real  estate  having  been  sold,  the  whole  amount  of  the  judgment  was  paid  to  the  plain- 
tiff by  the  sheriff.  Held,  that  an  action  will  lie  to  recover  back  the  amount  im- 
properly received,  and  that  such  action  could  not  be  maintained  in  the  name  of 
the  defendant  in  the  judgment  for  the  use  of  his  creditor,  but  must  be  in  the  name  of 
the  sheriff.  Qutere,  Whether  such  action  might  not  be  maintained  in  the  name  of 
the  creditor  who  was  beneficially  interested  in  the  recovery. 

ERROR  to  the  district  court  of  Lancaster  county. 

This  was  an  action  for  money  had  and  received  by  Christian  Longe- 
necker for  the  use  of  Samuel  Bossier  against  Conrad  Zeigler,  and  arose 
out  of  these  facts.  John  Esterlee  had  borrowed  from  Conrad  Zeigler 
1 200  dollars,  and  gave  him  his  bond  for  it  with  Christian  Longenecker 
as  surety.  A  judgment  had  been  obtained  on  this  bond,  and  subse- 
quently several  years'  interest  was  paid  to  the  plaintiff;  afterwards, 
the  real  estate  of  Longenecker  was  sold  by  the  sheriff,  from  whom 
Zeigler  received  the  whole  amount  of  his  judgment.  This  suit  was 
brought  to  recover  the  amount  improperly  received  by  Zeigler  in 
the  name  of  Longenecker  for  the  use  of  Bossier,  who  was  a  judgment 
creditor  of  Longenecker,  and  who  would  have  received  the  money  if 
Zeigler  had  not  taken  more  than  he  was  entitled  to.  Two  questions 
arose  :  whether  the  money  could  be  recovered  back  in  this  form  of 
action;  and,  whether  the  action  was  rightly  brought  in  the  name  of 
Longenecker.  The  court  below  was  of  opinion,  that  the  action  could 
not  be  maintained  in  the  name  of  the  present  plaintiff,  and  rendered 
a  judgment  accordingly. 

Jenkins,  for  plaintiff  in  error. 
Parke,  for  defendant  in  error. 

PER  CURIAM. — The  name  of  Longenecker  was  used  as  the  legal 
plaintiff,  under  the  supposition  that  he  had  the  legal  title ;  but  in 
this  species  of  action,  which,  in  substance,  is  said  to  be  a  bill  in 
equity,  there  is  no  distinction  between  legal  and  equitable  title,  he 
being  the  legal  party  who  is  entitled  to  the  money.  But  Longenecker 
was  not  entitled  beneficially,  or  even  as  a  trustee  for  the  creditors  ; 
for  the  law  is  not  so  unreasonable  as  to  attribute  to  him  the  owner- 
ship of  that  of  which  it  has  itself  divested  him,  and  appropriated  to 
the  extinguishment  of  his  debts.  Who,  then,  was  entitled  to  the 
money  here  1  The  sheriff's  is  the  hand  to  pay  out,  and  a  mispay- 
ment  may  undoubtedly  be  recovered  back  by  him,  in  an  action 
founded  on  the  special  property  which  he  has  in  the  money  as  the 
bailee  of  the  law ;  so  that  the  action  here  might  have  been  brought 


JVoc.  1832.]  OF  PENNSYLVANIA.  303 

[Longenecker  v.  Zeigler.] 

with  perfect  safety  in  his  name.  It  might  also,  perhaps,  have  been 
brought  in  the  name  of  Bossier,  the  creditor  ultimately  entitled  ;  for 
though  there  is  no  privity  between  him  and  the  defendant,  the  mo- 
ney, where  it  has  been  received  mala  fide,  may  be  pursued  specifi- 
cally on  the  owner's  right  of  property.  Here  there  would  seem  to 
be  enough  in  the  case  to  authorize  a  jury  to  find,  that  the  money 
was  received  mala  fide,  or,  perhaps,  a  legal  presumption  to  that  effect 
would  necessarily  arise  from  the  facts.  But  all  difficulty  would  have 
been  removed  by  proceeding  in  the  name  of  the  sheriff. 
Judgment  affirmed. 


Sommer  against  Sommer. 

When  a  judgment  has  been  opened  at  the  instance  of  creditors,  upon  an  allegation 
that  it  was  fraudulent  as  against  them,  the  defendant  in  such  judgment  is  a  compe- 
tent witness  for  the  creditors  to  establish  the  fraud. 

ERROR  to  the  district  court  of  Lancaster  county.  Bradford,  Pre- 
sident. 

Jacob  Sommer  executed  a  judgment  bond  to  his  father,  Leonard 
Sommer,  for  2088  dollars  and  38  cents,  which  was  entered  of  record. 

The  creditors  of  Jacob  Sommer  alleged,  that  this  judgment  was 
fraudulent  as  against  them,  and  at  their  instance  it  was  opened  so  as 
to  let  them  into  a  defence.  Upon  the  trial  of  the  cause,  the  creditors 
offered  Jacob  Sommer  as  a  witness  to  establish  the  fraud :  he  was 
objected  to,  on  the  ground  that  he  was  not  competent ;  but  the 
court  overruled  the  objection ;  which  was  the  subject  of  the  only 
error  assigned. 

Reigart  and  Ellmaker,  for  plaintiff  in  error. 

A  defendant,  in  a  judgment,  should  not  be  permitted  to  give  evi- 
dence to  invalidate  the  bond  on  which  the  judgment  was  rendered. 
In  Wolfv.  Carothers,  3  Serg.  <£•  Rawle  240,  it  is  decided  that  the 
declarations  of  an  obligor  can  not  be  received  to  invalidate  his  own 
bond ;  and  the  same  principle  is  recognized  in  Whiting  v.  Johnston, 
11  Serg.  4"  Rawle  328.  The  lips  of  the  plaintiff  were  sealed,  while 
the  defendant  was  permitted  to  swear  away  his  debt,  or  what  was 
the  same  thing  in  this  case,  to  take  from  him  the  only  thing  which 
made  his  judgment  of  any  value — a  preference  over  other  creditors. 
In  the  case  of  Jacoby  v.  Laussatt,  6  Serg.  fy  Rawle  300,  the  interest 
of  the  witness  was  equally  balanced  between  the  plaintiff  and  de- 
fendant: not  so  in  this  case,  for  his  interest  was  to  destroy  his  father's 
judgment,  that  his  other  creditors  might  be  paid,  and  he  be  thus 
relieved  from  them.  It  does  not  comport  with  the  policy  of  the  law 


304  SUPREME  COURT  [Lancaster, 

[Sommcr  v.  Sommcr.] 

to  permit  an  insolvent  to  postpone  securities  which  he  had  previously 
given. 

Montgomery  and  Norris,  for  defendant  in  error. 

The  issue  in  this  case  was  not  to  create  or  destroy  a  liability  as 
between  the  plaintiff  and  defendant  in  the  judgment;  for  whether 
fraudulent  or  not  as  to  creditors,  as  between  the  parties  to  it  the  judg- 
ment was  good,  and  so  remained.  5  Jiinn.  76,  109.  The  assignor  of 
a  bond  is  a  competent  witness  to  prove  that  it  was  fraudulently  given 
to  him ;  Baring  v.  Shippen,  2  Binn.  154,  where  the  principle  is  strongly 
stated,  that  if  a  witness  be  disinterested  in  the  event  of  the  suit,  he 
may  testify  to  what  would  elsewhere  affect  his  interest.  The  rule 
that  a  man  can  not  invalidate  his  own  deed,  is  confined  to  negotiable 
instruments.  M'Pherranv.  Powers,  1  Serg.  fy  Rawle  102;  4  Serg. 
4-  Rawle  494 ;  Bank  v.  Hillard,  5  Cowan  153.  The  case  of  Wal- 
ton v.  Shelly,  has  been  overruled  in  England,  and  never  recognized 
here.  Per  Gibson,  C.  J.,  4  Serg.  fy  Rawle  497. 

PER  CURIAM. — Had  the  court  awarded  a  collateral  issue,  formally, 
to  try  the  question  between  the  obligee  and  the  other  creditors,  it  is 
clear  the  obligor  would  have  been  a  competent  witness.  For  though 
it  might  be  inferred,  from  an  intimation  in  Wolfv.  Carothers  of  his 
being  a  witness  to  sustain  the  bond  because  his  evidence  tends  to 
decrease  the  fund,  that  his  evidence  tends  to  increase  the  fund  where 
he  is  called  to  disprove  the  debt ;  yet  it  will  be  found  that  that  con- 
sequence does  not  follow,  and  that  either  way  he  has  no  interest  in 
the  event,  whether  immediate  or  remote,  certain  or  contingent.  By 
sustaining  the  bond,  it  is  admitted  that  he  gains  nothing,  as  the  ob- 
ligee is  then  to  be  paid  with  the  rest;  and  by  defeating  it  it  is  equally 
clear  that  he  gains  nothing,  because,  as  against  all  but  creditors,  the 
obligee  is  still  to  be  paid,  the  judgment  standing  good  against  the 
obligor  and  claiming  under  him,  and  ready  to  intercept  his  effects  on 
their  passage  to  his  hands  after  the  other  creditors  are  done  with 
them.  In  all  such  cases,  the  controversy  is  between  the  creditors 
exclusively ;  for  be  the  judgment  fair  or  foul,  it  must  be  satisfied  out 
of  the  mass  of  the  debtor's  effects,  or  out  of  his  resulting  interest,  if 
any  thing  remains  after  satisfaction  of  the  other  creditors.  What 
then  is  the  difference,  in  this  respect,  between  a  collateral  issue  and 
that  which  was  tried  here  1  The  judgment  was  opened  so  far  as  to 
let  the  creditors  into  a  defence  on  the  merits,  in  order  to  show  that 
the  bond  and  warrant  was  without  consideration,  and  given  to  delay, 
hinder  and  defraud  creditors  ;  consequently,  for  every  other  purpose 
it  stood  good,  and  especially  against  the  defendant,  as  regards  whom, 
execution  might  have  issued  on  it  without  having  it  closed,  or  any 
other  preparatory  step  being  taken,  the  moment  the  question  of  pri- 
ority was  settled  among  the  creditors.  This  method  of  trying  the 
question  of  fraud,  by  opening  the  judgment  so  far  as  to  give  the 
party  intended  to  be  defrauded  an  opportunity  of  showing  the  ex- 


Nov.  1832.]  OP  PENNSYLVANIA.  3Q5 

[Sommer  v.  Sommer.] 

istence  of  collusion,  is  a  very  common  one,  and  though  less  technical, 
it  is  quite  as  convenient  as  a  collateral  issue,  requiring  less  nicety  in 
the  pleading,  and  serving  equally  well  to  inform  the  conscience  of  the 
court  in  directing  the  process  of  execution.  It  was  recognized  in 
WTiiling  v.  Johnson,  1 1  Serg.  fy  Rawle  328,  as  being  equivalent  in 
all  respects  to  a  feigned  issue.  The  consequence  is,  that  the  obligor 
was  not  a  party ;  and  that  standing  free  from  interest  in  every  respect, 
he  was  a  competent  witness. 
Judgment  affirmed. 


2o 


CASES 


IN 


THE   SUPREME   COURT 


OP 


PENNSYLVANIA. 


LANCASTER  DISTRICT,  MAY  TERM  1833. 


Commonwealth  against  M'Allister. 

A  writ  of  certiorari  from  the  supreme  court  to  the  judges  of  the  court  of  quarter 
sessions,  will  not  be  quashed,  because  the  party  to  the  proceedings  in  the  court  below 
was  dead  when  it  issued. 

MOTION  to  quash  a  writ  of  certiorari. 

This  writ  of  certiorari  issued  tc  the  judges  of  the  court  of  quarter 
sessions  of  Dauphin  county,  to  remove  the  record  and  proceedings 
which  had  been  instituted  there  by  Archibald  McAllister,  to  recover 
damages  which  he  had  sustained,  by  reason  of  the  construction  of 
the  Pennsylvania  canal.  After  the  proceedings  were  confirmed  by 
the  court  below,  and  before  this  writ  issued,  M'Jlllister  died,  which 
was  the  ground  of  the  motion  to  quash. 

Elder  and  Hopkins,  for  the  motion. 
Foster,  contra. 

The  opinion  of  the  Court  was  delivered  by 

ROGERS,  J. — An  application  has  been  made  to  quash  the  certiorari, 
because,  at  the  time  the  writ  was  issued,  Archibald  McAllister,  the 
defendant  in  error,  was  dead.  The  Commonwealth  resists  the  motion 
to  quash,  and  having  suggested  the  death  of  the  defendant  in  error, 


308  SUPREME  COURT  [Lancaster, 

[Commonwealth  v.  M'Allister.] 

asks  the  court  for  a  rule  upon  John  C.  M'Jlllister,  the  surviving  ad- 
ministrator, to  appear  and  plead  to  the  errors  assigned,  on  or  before 
the  first  day  of  the  next  term.     A  cerliorari  is  a  writ,  where  the  court 
would  be  certified  of  a  record  in  another,  or  sometimes  in  the  same 
court.     And  he  to  whom  the  certiorari  is  directed  ought  to  send  the 
same  record,  or  the  tenor  of  it,  as  commanded  by  the  writ ;  and  if  he 
fail  to  do  so,  then  an  alias  is  awarded  ;  afterwards  a  pluries,  with  a 
clause  of  vel  causam  nobis  signifaas ;  and  then  an  attachment,  if  good 
cause  be  not  returned  upon  the  pluries.     When  the  record  is  removed 
either  by  certiorari  or  writ  of  error,  the  supreme  court  have  power  to 
examine  the  record  upon  which  judgment  was  given,  and  on  such 
examination,  to  affirm  or  reverse  the  same,  according  to  law.     The 
certiorari  is  a  judicial  writ,  issuing  out  of  the  court  to  which  the  pro- 
ceedings are  to  be  removed,  and  is  directed  to  the  judge  or  officer 
who  has  the  custody  of  the  record,  or  other  matter  to  be  certified.    In 
this  case,  the  certiorari  is  directed  to  the  judges  of  the  court  of  quar- 
ter sessions  of  Dauphin  county,  commanding  them  to  certify  the  pro- 
ceedings had  on  the  application  of  Archibald  M  'Jlllister  for  damages 
occasioned  by  the  Pennsylvania  canal.     The  writ  is  entitled  in  the 
name  of  The  Commonwealth  v.  McAllister,  and  in  obedience  to  the 
writ,  the  court  of  quarter  sessions  have  certified  the  record  and  pro- 
cess, and  have  returned  the  record,  together  with  the  writ  as  they 
were  commanded,  and  this  was  the  only  return  the  court  could 
make.     It  was*  not  for  them  to  inquire  into  the  death  of  Archibald 
M'JUlister,  for  a  return  by  them  of  that  fact,  without  the  record  and 
process,  would  have  been  an  insufficient  return,  which,  if  persisted  in, 
would  have  rendered  them  liable  to  attachment.     Besides,  if  there 
were  an  irregularity  in  this  ;  yet,  we  have  the  record  before  us,  and 
it  is  a  principle  of  law  well  settled,  that  third  persons  cannot  object 
to  the  misdirection  of  a  certiorari,  to  remove  a  cause  from  an  inferior 
court,  if  the  proper  officers  in  whose  keeping  the  record  was,  waive 
the  objection,  and  return  the  record.     Daniel  v.  Phillips,  4  Serg.  fy 
Rawle  499.     The  cause  is  entitled  in  the  name  of  the  parties  on  the 
record,  to  identify  the  proceedings  which  it  is  intended  to  remove. 
It  has  never  been  the  practice  in  this  state,  to  serve  a  copy  of  the 
writ  on  the  attorney  on  the  record,  as  in  England  ;  nor  is  the  writ, 
as  is  the  case  in  the  supreme  court  of  the  United  States,  accompanied 
with  a  citation  to  the  party.     The  court  of  review  will  take  care 
that  notice  is  given,  and  that  the  proper  parties  are  put  on  the  record  ; 
and  this  object  is  attained,  on  motion,  by  a  rule  similar  to  the  rule 
asked  for  by  the  counsel  for  the  commonwealth. 

It  is  ordered  by  the  court,  that  the  rule  to  quash,  &c.  be  refused, 
and  that  the  rule  to  appear  and  plead,  be  made  absolute. 


May  1833.]  OF  PENNSYLVANIA.  309 


Beard  against  Deitz. 

A  judgment  against  the  husband  of  an  heir  at  law  is  a  lien  against  his  life  estate, 
and  upon  a  sale  made  by  the  administrator  of  the  ancestor  of  the  whole  estate,  by 
virtue  of  the  intestate  laws,  such  judgment  creditor  is  entitled  to  be  paid  the  amount 
of  his  judgment,  when  the  proceeds  due  and  payable  to  such  husband  are  sufficient 
for  that  purpose. 

ERROR  to  the  district  court  of  York  county. 

Peter  Kline  died  intestate  seised  of  real  estate,  leaving  issue  seve- 
ral daughters,  to  one  of  whom  George  Stoutzenberger  was  married. 
After  the  death  of  Peter  Kline,  George  Beard,  the  plaintiff,  issued  a 
fieri  facias  upon  a  judgment  which  he  had  previously  obtained  against 
Stoutzenberger  and  levied  it  upon  all  his  interest  in  Peter  Kline's 
real  estate.  John,  one  of  the  children  of  Peter  Kline,  then  presented 
a  petition  to  the  orphan's  court  for  a  writ  of  partition  and  valuation 
of  his  father's  estate,  which  was  proceeded  in  to  a  sale  of  the  said 
estate  by  the  administrators.  This  suit  was  then  brought  by  Beard 
against  the  administrator  of  Kline,  to  recover  from  him  the  amount 
of  his  judgment  against  Stoutzenberger;  and  it  was  admitted  that 
the  interest  upon  the  share  of  Stoutzenberger  in  the  hands  of  the  de- 
fendant was  sufficient  to  pay  Beard's  judgment  if  he  were  entitled 
to  recover  it.  The  court  below,  upon  these  facts,  rendered  a  judg- 
ment for  the  defendant,  which  was  assigned  for  error. 

Gardner  and  Lewis,  for  plaintiff  in  error. 
Hambly,  contra. 

The  opinion  of  the  Court  was  delivered  by 

ROGERS,  J. — The  judgment  and  levy  were  a  lien  on  the  life  estate, 
which  Stoutzenberger  had  in  the  land,  in  right  of  his  wife  Catharine, 
the  daughter  of  Kline.  And  if  the  interest  of  Stoutzenberger  had 
been  sold  by  the  sheriff  on  the  execution,  the  creditors  would  have 
been  entitled  to  the  proceeds.  But  Beard  was  prevented  from  reap- 
ing the  fruits  of  his  judgment  by  the  proceeding  in  the  orphan's 
court,  at  the  instance  of  one  of  the  heirs  of  Kline.  After  the  con- 
firmation of  sale,  the  creditors  might  have  had  the  money  brought 
into  the  court,  and  in  the  distribution  of  the  fund  they  would  have 
invested  Catharine's  share,  the  one  seventh,  the  interest  to  be  appro- 
priated in  satisfaction  of  the  debt  during  the  life  of  her  husband  ;  for 
unless  this  could  be  done,  it  would  be  in  the  power  of  the  heirs  to  de- 
prive creditors  of  their  lien  in  all  such  cases.  The  property  was  sold 
by  the  administrator  in  pursuance  of  the  order  of  the  court,  and  is 
now  in  his  hands  for  appropriation.  It  is  not  Hie  case  of  a  secret 


310  SUPREME  COURT  [Lancaster, 

[Board  v.  Deitz.] 

lien,  for  the  lien  is  by  force  of  the  judgment  and  levy,  which  follow 
the  money  into  the  hands  of  the  administrators,  and  of  which  he  is 
bound  to  take  notice.  At  all  events,  he  has  now  notice  before  the 
money  has  been  paid  over.  The  case  finds,  that  the  interest  which 
accrued  on  the  wife's  share,  before  her  husband's  death,  was  sufficient 
to  pay  the  plaintiff's  debt. 
Judgment  reversed,  and  judgment  for  the  plaintiff. 


Commonwealth  against  Simonton. 

Where  the  condition  of  a  recognizance  was,  that  the  principal  would  "  do  and 
perform  all  the  things  required  by  law  of  him  as  guardian  as  aforesaid,  and  shall 
faithfully  account  with  said  minor,  and  pay  over  all  such  sums  of  money  as  may  come 
to  his  hands  according  to  the  direction  of  the  court."  Held  :  on  a  scire  facias  against 
the  surety  on  this  recognizance,  that  ho  could  not  be  charged  with  the  money  reported 
to  be  due  by  his  principal  to  the  ward,  by  referees  chosen,  without  the  knowledge  or 
consent  of  the  surety,  by  the  principal  and  the  guardian  who  succeeded  him. 

APPEAL  from  the  circuit  court  of  Dauphin  county,  held  by  Jus- 
tice Huston. 

John  W.  Simonton,  the  defendant's  intestate,  entered  into  a  recog- 
nizance in  the  orphan's  court  of  Dauphin  county  as  the  surety  of 
John  M'Cord,  who  was  the  guardian  of  Peggy  Rudy,  on  the  llth 
of  September  1820  ;  the  condition  of  which  was,  "that  if  the  said 
John  M'Cord,  guardian  of  Jonas  and  Peggy  Rudy,  should  do  and 
perform  all  things  required  by  law  of  him  as  guardian  as  aforesaid, 
and  shall  faithfully  account  with  said  minors,  and  pay  over  all  such 
sums  of  money  as  may  have  come  or  shall  come  to  his  hands  as 
guardian,  according  to  the  direction  of  the  court,  then,  &c."  A  scire 
facias  issued  on  this  recognizance  against  Wallace,  the  administrator 
of  Simonton  for  the  use  of  Peggy  Rudy,  to  December  term  1828,  to 
which  the  defendant  pleaded  payment;  replication,  norisolvit,  and  issue. 
On  the  trial  of  the  cause  in  the  circuit  court,  the  plaintiff  gave  in 
evidence  the  appointment  of  John  *M'Cord  as  guardian  of  Peggy 
Rudy ;  the  decree  of  the  orphan's  court  directing  him  to  give  bail  in 
1200  dollars ;  the  foregoing  recognizance  on  which  suit  was  brought ; 
the  dismissal  of  the  said  John  M'Cord,  and  the  appointment  of  Ro- 
bert M*Clure;  a  citation  to  the  said  John  to  settle  his  account ;  the 
account  filed  by  him  in  pursuance  of  the  same,  together  with  the 
exceptions  to  its  confirmation.  The  following  agreement,  report  and 
judgment,  with  proof  of  their  execution  by  the  subscribing  witnesses, 
were  then  offered. 

"  We  agree  to  William  Rutherford,  James  Jllrinks  and  James  Mont- 
gomery being  arbitrators  to  settle  and  adjust  the  account  of  John 
J\rCord,  late  guardian  of  Peggy  Rudy.  The  said  arbitrators  to 


May  1833.]  OF  PENNSYLVANIA.  311 

[Commonwealth  v.  Simonton.] 

meet  at  the  house  of  John  Kelker  the  28th  of  Marcli  1826,  with  power 
to  adjourn.  And  the  said  John  J\f'Cord  agrees  to  the  prothonotary 
of  the  court  of  common  pleas  of  Dauphin  county  entering  judgment 
against  him  for  whatever  the  said  arbitrators,  or  a  majority  of  them 
may  find  due  from  him  to  the  said  Robert  M  'Clure,  the  present  guar- 
dian of  the  said  Peggy  Rudy.  Witness  our  hands  and  seals  this  15th 
day  of  March  1826. 

JOHN  M'CoRD.  [Seal]. 

ROBERT  M'CLURE.     [Seal]. 

Witness  present,  William  JWC/wre." 

This  agreement  was  indorsed  : 

"  We,  the  arbitrators  within  named,  having  met  agreeably  to  the 
within  rule  at  the  house  of  John  Kelker,  after  being  first  sworn,  and 
after  hearing  the  parties,  their  proofs  and  allegations,  do  award  for 
the  plaintiff  492  dollars  and  47  cents,  with  costs  of  suit.  Witness 
our  hands  this  28th  day  of  March  1826." 

On  which  award  the  prothonotary  made  this  entry  :  "  Robert 
M'Clure  guardian  of  Peggy  Rudy  v.  John  M'Cord"  No.  132, 
April  term  1826,  amicable  action.  30th  March  1826,  judgment  for 
492  dollars  and  47  cents,  with  interest  from  the  28th  March  instant, 
and  costs  (see  agreement  filed)." 

This  evidence  having  been  rejected  by  the  court,  the  plaintiff  suf- 
fered a  nonsuit,  and  the  jury  was  dismissed. 

The  plaintiff's  counsel  then  moved  to  set  aside  the  nonsuit  for 
these  reasons.  1st.  The  court  erred  in  deciding  that  the  plaintiff 
could  not  maintain  his  action,  because  the  orphan's  court  had  not 
decreed  upon  the  guardianship  account  of  John  M'Cord  before  suit 
brought,  whereas  such  decree  was  rendered  unnecessary,  and  was 
revived,  by  the  reference  of  the  said  account  and  the  exceptions  to  it 
to  men,  and  their  report  and  judgment  thereon  before  suit  brought. 
2d.  That  the  court  erred  in  deciding,  that  under  the  plea  in  this  case 
the  action  was  not  maintainable  ;  whereas  the  defendant  ought  to 
have  pleaded,  that  the  decree  of  the  orphan's  court  on  the  guardian- 
ship account  of  John  M'Cord  was  not  made  when  the  suit  was 
brought  before  pleading  in  chief  to  the  action. 

By  the  Court :  As  to  the  first  objection  made  to  the  decision  of 
the  court,  if  the  guardian  had  been  sued  and  before  the  court,  I  do 
not  decide :  it  might,  as  to  him,  be  a  waiver  of  his  rights.  But  when 
his  bail  is  sued  for  not  paying  money  in  his  hands,  and  the  suit  is 
brought  before  the  amount  to  be  paid  is  ascertained,  the  case  is  as 
strong  as  those  already  decided. 

The  second  point  is  twice  decided  by  the  supreme  court.  Motion 
overruled,  and  judgment ;  from  which  the  plaintiff  appealed. 

Harris)  for  the  appellant. 

In  this  case,  M'Cord,  the  first  guardian,  had  filed  an  account 
which  he  and  M'Clure,  who  was  last  appointed,  agreed  to  refer,  and 
a  settlement  was  made  by  the  man  chosen  between  them,  who  re- 


312  SUPREME  COURT  [Lancaster, 

[Commonwealth  v.  Simonton.] 

ported  the  balance  due  by  M'Cord  to  his  ward.  The  filing  of  this 
account  in  the  orphan's  court,  the  reference  of  it  by  the  consent  of 
the  parties,  and  the  adjusting  of  the  balance  due  by  M'Cord  by  the 
referees,  take  this  case  out  of  the  reason  of  the  decisions  in  Herr  v. 
Bowman,  I  Penns.  Rep.  283,  and  Denison  v.  Cornwell,  17  Serg.  fy 
Rawle  374.  Although  a  guardian  has  a  right  to  settle  his  accounts 
in  the  orphan's  court,  yet  he  may  waive  that  right  and  appoint  a 
new  tribunal.  Besides,  this  is  a  scire  facias  on  a  recognizance,  the 
provisions  of  which  are  like  those  of  an  administration  bond  ;  and  it 
has  been  held  that  suit  may  be  brought  on  an  administration  bond  be- 
fore an  account  is  settled.  And  where  assumpsit  was  brought  against 
an  administrator  with  the  will  annexed,  to  recover  a  distributive 
share  of  the  residuum  of  an  estate  under  a  will,  the  amount  of  which 
was  not  ascertained,  the  proof  of  an  express  assumpsit  was  not  re- 
quired. Holloback  v.  Vanbuskink,  4  DalL  147  ;  Clark  v.  Herring, 
5  Binn.  40.  Again,  the  objection  which  is  here  set  up  should  have 
been  pleaded  in  abatement,  and  cannot  be  taken  advantage  of  under 
the  plea  of  payment.  Wood  v.  Davidson,  2  Rawle  52. 

Elder,  contra. 

The  rule  of  law  ought  to  be  in  favour  of  a  surety.  By  the  condi- 
tion of  the  recognizance  in  the  orphan's  court,  M'Cord  "was  to 
pay  over  according  to  the  direction  of  the  court;"  the  reference, 
therefore,  and  judgment  thereon  in  the  court  of  common  pleas,  do 
not  answer  the  recognizance,  and  cannot  affect  the  surety,  who  was 
not  a  party  to  the  agreement  to  refer ;  nor  does  the  scire  facias  call 
for  him  to  answer  to  this  judgment  in  the  common  pleas.  A  scire 
facias  on  a  sheriff 's  recognizance  must  set  forth  the  breaches.  With- 
row  v.  The  Commonwealth,  10  Serg.  fy  Rawle  231.  Here  they  are 
not  properly  set  forth ;  nothing  is  said  of  the  dismission  of  John 
M'Cord,  nor  of  the  appointment  of  Robert  M'Clure,  as  guardian. 

M'Clure,  in  reply. 

The  scire  facias  may  be  amended  and  new  breaches  assigned,  and 
even  a  new  declaration  filed  in  lieu  of  the  scire  facias.  The  court 
are  not  trying  a  writ  of  error.  The  insufficiency  of  the  breaches  was 
not  mentioned  below  ;  but  the  court  decided  on  the  grounds  which 
are  stated  in  the  exceptions. 

PER  CURIAM  (ROGERS,  J.  dissenting.) — The  scire  facias  itself  is 
an  imperfect,  and,  perhaps,  fatally  defective  statement  of  the  cause 
of  action  ;  but  our  inquiry  has  been  directed,  by  the  point  raised, 
exclusively  to  the  merits  of  the  case,  as  it  appeared  on  the  evi- 
dence. The  defendant,  being  a  surety,  is  not  liable  beyond  the  ex- 
tent of  his  engagement ;  in  other  words,  he  is  not  answerable  for 
every  thing  that  happens  to  be  a  moral  duty  of  his  principal. 
His  engagement  here,  as  appears  from  the  condition  of  the  recog- 
nizance set  out  in  the  writ,  was,  that  the  principal  would  "  do  and 


May  1833.]  OF  PENNSYLVANIA.  313 

[Commonwealth  v.  Simonton.] 

perform  all  the  things  required  by  law  of  him,  as  guardian,  as 
aforesaid,  and  shall  faithfully  account  with  the  said  minor,  and 
pay  over  all  such  sums  of  money  as  may  have  come  to  his  hands, 
according  to  the  direction  of  the  court."  What,  then,  was  the  evidence 
offered  to  charge  him1?  It  was,  that  certain  arbitrators,  chosen  by 
the  principal  and  his  successor,  had  awarded,  to  be  paid  by  the  for- 
mer, the  sum  claimed  here  from  his  surety.  The  attempt  is  to  charge 
him  with  money  ordered  to  be  paid  over  by  his  principal,  not  by  the 
court,  according  to  the  condition  of  the  recognizance,  but  by  arbitra- 
tors not  chosen  by  the  surety.  Would  that  be  according  to  the 
contract  1  A  surety  may  well  be  supposed  willing  to  become  liable 
for  what  shall  be  adjudged  against  his  principal  by  a  court  of  record, 
without  being  willing  that  his  principal  shall  have  power  to  fix  him 
with  equal  responsibility,  by  the  fiat  of  arbitrators  not  chosen  by  the 
surety.  It  is  very  possible,  as  suggested,  that  the  orphan's  court 
would  have  made  this  award  the  ground  of  a  decree  for  payment ; 
but  it  is  equally  possible  that  it  would  not ;  and  had  gross  mistake 
appeared  on  the  part  of  the  arbitrators,  it  is  clear  that  it  would  have 
been  bound  to  refuse  its  assistance  to  carry  the  award  into  effect. 
It  said,  however,  that  the  condition  consists  of  a  variety  of  parts.  It 
does  so.  But  the  breach  assigned,  is  the  omission  to  pay  over  ;  and 
though  a  refusal  to  do  so  may  seem  to  be  a  breach  of  the  condition, 
which  requires  him  "  to  do  and  perform  all  things  required  by  law," 
it  is  an  assumption  of  the  very  question,  to  say  the  law  requires  him 
to  pay  under  any  other  order  than  the  one  stipulated.  It  seems, 
therefore,  the  evidence  was  properly  rejected. 
Judgment  affirmed. 


314  SUPREME  COURT  {Lancaster, 


Mehaffy  against  Lytle. 

One  who  attends  to  the  trial  of  a  cause,  not  as  a  party,  but  upon  notice  by  the 
defendant,  because  of  a  liability,  the  amount  of  which  will  be  affected  by  the  verdict 
and  judgment,  may  give  evidence  to  lessen  or  defeat  a  recovery  ;  if  he  neglect  to 
give  such  evidence,  he  will  not  be  permitted  afterwards  to  give  it  in  an  action  di- 
rectly against  himself,  by  the  defendant  in  the  first  suit. 

When  the  rules  of  court  require  a  defendant  to  give  notice  to  the  plaintiff  of  spe- 
cial matter,  which  he  intends  to  rely  upon  as  a  defence,  and  such  notice  ia  not  given, 
the  evidence  should  be  rejected. 

An  action  on  a  bond  of  indemnity,  given  by  one  to  two,  when  one  has  alone  been 
damnified,  is  rightly  brought  in  the  name  of  both  the  obligees  for  the  use  of  the  one  ; 
and  declaration  is  not  vitiated  by  a  particular  relation  of  the  use,  nor  by  the  conclu- 
sion that  the  refusal  of  the  defendant  to  pay  was  to  the  damage  of  one. 

APPEAL  from  the  circuit  court  of  Lancaster  county,  held  by  Chief 
Justice  Gibson. 

This  was  an  action  of  debt  on  bond,  by  James  Mehaffy  and  James 
Duffy  for  the  use  of  James  Duffy,  against  Joseph  Lytle  who  survived 
John  Pedan ;  all  the  facts  of  which  are  fully  stated  by  his  honour, 
who  delivered  the  opinion  of  the  court. 

Cliampneys  and  Morris,  for  appellants. 

Montgomery  and  Hopkins,  contra,  whom  the  court  declined  to  hear. 

The  opinion  of  the  Court  was  delivered  by 

KENNEDY,  J. — This  cause  was  tried  lately  at  a  circuit  court  held 
before  his  hono1"*,  the  chief  justice,  for  Lancaster  county,  and  has 
been  brought  here  by  an  appeal  taken  on  the  part  of  the  defendant. 
It  is  an  action  of  debt  brought  on  a  bond  dated  the  19th  day  of  July 
1815,  executed  by  John  Pedan  as  principal,  who  died  before  the 
action  was  commenced,  and  Joseph  Lytle,  the  defendant,  as  the 
surety  of  Pedan,  to  the  plaintiffs,  James  Mehaffy  and  James  Duffy,  in 
the  sum  of  7233  dollars  and  41  cents.  The  bond  with  its  condition, 
and  all  the  facts  and  circumstances  connected  with  it,  and  which 
have  given  rise  to  this  suit,  are  stated  and  set  out  in  the  declaration. 
From  this,  it  appears,  that  John  Pedan,  James  Mehaffy,  James  Duffy 
and  Henry  Share,  as  principals,  and  Henry  Cassel  and  George  Sny- 
der  as  sureties  for  James  Mehaffy  and  James  Duffy,  and  Joseph  Lytle 
as  surety  for  John  Pedan,  Henry  Share  giving  no  surety,  all  joined  in 
giving  a  bond,  dated  the  6th  of  April  1813,  to  Frances  Evan$^upon 
which  there  remained  at  the  time  of  giving  the  bond  in  suit,  a 
balance  due  of  14,466  dollars  and  86  cents,  one-fourth  of  which  was 
to  be  paid,  as  it  was  then  agreed,  by  John  Pedan,  as  his  proportion  of 
it ;  the  obligors  named  in  the  bond  to  Mrs  Evans,  being  bound  to 
her  jointly  and  severally,  for  the  payment  of  the  14,466  dollars  and 
86  cents.  The  bond  in  suit  was  given  by  John  Pedan,  with  Joseph 


May  1833.]  OP  PENNSYLVANIA.  315 

[Mehaffy  v.  Lytle.] 

Lytle  as  his  surety,  for  the  purpose  of  keeping  James  Mehaffy  and 
James  Duffy,  the  plaintiffs  in  this  action,  indemnified  against  paying 
John  Pedants  one-fourth  of  the  debt  due  to  Mrs  Evans,  and  against 
all  damages,  costs  and  charges  which  might  accrue  or  arise  on 
account  of  John  Pedan's  failing  to  pay  it.  Mrs  Evans  brought  a  suit 
upon  her  bond  against  John  Pedan,  James  Mehaffy,  James  Duffy, 
Henry  Share,  Henry  Cassel,  George  Snyder  and  Joseph  Lytle,  in  the 
court  of  common  pleas  of  Lancaster  county,  to  November  term  1815, 
in  which  she  obtained  a  judgment  on  the  26th  of  January  1816, 
against  all  of  them,  excepting  James  Mehaffy,  upon  whom  the  writ 
of  summons  was  not  served,  by  the  direction  of  Mrs  Evans,  the  plain- 
tiff therein,  for  some  cause.  The  real  estate  of  Henry  Share,  one  of 
the  defendants  in  the  judgment,  was  afterwards  taken  in  execution 
and  sold  by  the  sheriff;  and  out  of  the  money  arising  from  this  sale, 
the  balance  due  to  Mrs  Evans  upon  her  judgment,  being  in  amount 
upwards  of  9300  dollars,  was  paid.  Henry  Share  being  indebted  to 
Henry  Haines,  and  knowing  that  a  great  deal  more  than  his  propor- 
tion of  the  debt  due  to  Mrs  Evans,  had  thus  been  paid  out  of  the  pro- 
ceeds of  the  sale  of  his  property,  assigned  to  Henry  Haines  the  claim 
which  he  had  for  contribution  against  his  co-principal  obligors.  At 
this  time  John  Pedan  had  become  insolvent,  and  had  failed,  as  was 
alleged,  to  pay  any  part  of  his  one-fourth  of  the  sum  due  to  Mrs 
Evans,  at  the  date  of  the  bond  in  suit.  Henry  Haines,  therefore, 
brought  a  suit  to  June  term  1827,  against  James  Mehaffy  in  the 
name  of  Henry  Share,  for  his  own  use,  in  the  district  court  of  Lan- 
caster county,  to  recover  from  Mehaffy  his  contributory  part  of  the 
loss  which  had  accrued  through  the  insolvency  of  John  Pedan.  This 
suit,  after  having  been  removed  into  the  circuit  court,  and  after 
notice  given  by  James  Mehaffy  to  Joseph  Lytle,  the  defendant  in  this 
present  suit,  to  appear  and  defend,  who  accordingly  attended  to  the 
trial,  was  tried,  and  a  verdict  and  judgment  rendered  in  favour  of 
Henry  Share,  for  the  use  of  Henry  Haines,  for  2546  dollars.  See  this 
case  reported  in  2  Penns.  Rep.  361.  James  Mehaffy  paid  this  sum  of 
money,  and  brought  this  action  to  have  it  reimbursed  to  him. 

On  the  trial  of  this  cause  the  defendant,  among  other  things,  offered 
to  give  in  evidence  certain  articles  of  agreement  entered  into  on  the 
4th  of  October  1813,  between  James  Anderson  of  the  one  part,  and 
Henry  Share  of  the  other  part;  whereby  Anderson  agreed  to  sell  and 
convey  certain  land  therein  described  to  Henry  Share  in  fee,  upon 
his  paying  100,000  dollars.  Upon  the  back  of  the  articles  it  appeared 
by  indorsements,  that  Henry  Share  paid  on  the  15th  of  October  1813,. 
11,000  dollars,  and  again  on  the  12th  of  September  1814,  4000  dol- 
lars. Also  certain  other  articles  of  agreement  entered  into  on  the 
8th  of  the  same  October,  between  Henry  Share  and  James  Mehaffy, 
John  Pedan,  Matthias  Rouck,  James  Duffy  and  John  Haines,  whereby 
Henry  Share  agreed  that  each  of  those  persons  last  named  should 
become  equally  interested  with  himself  in  the  purchase  of  the  land 
set  forth  in  the  first  articles  of  agreement,  upon  their  paying  each  an 


316  SUPREME  COURT  [Lancaster, 

[Mehaffy  v.  Lytle.] 

equal  proportion  of  the  purchase  money,  which  they  respectively 
bound  themselves  thereby  to  do ;  and  all  further  thereby  agreed  to 
become  partners,  and  to  participate  equally  in  the  loss  or  profit  at- 
tending the  same,  as  it  might  happen.  And  likewise  offered  to  prove 
further,  in  connexion  with  the  foregoing  articles  of  agreement,  that 
James  Mehaffy  had  received  from  Henry  Share  his  full  purpart  of  the 
property  for  which  the  agreement  of  purchase  was  made  with  James 
Anderson,  and  that  the  residue  of  it  was  afterwards  levied  on  and  sold 
as  the  property  of  Henry  Share  by  the  sheriff;  that  subsequently  to  the 
purchase  of  the  land  from  Mrs  Evans,  which  formed  the  consideration 
of  the  bond  that  was  given  to  her  on  the  6th  of  April  1813,  in  which 
Pedan,  Mehaffy  and  others  were  bound  as  already  stated,  and  to 
which  the  bond  upon  which  this  suit  is  founded  has  a  reference,  that 
John  Pedan,  James  Mehaffy  and  James  Duffy  laid  out.  the  land  pur- 
chased of  Mrs  Evans  into  town  lots,  which  were  sold  by  lottery,  and 
James  Mehaffy  appointed  treasurer,  to  receive  the  moneys  arising 
therefrom,  for  their  joint  use;  that  he  received  10,000  dollars,  which 
he  applied  towards  payment  of  Mrs  Evans's  bond,  and  thereby  ob- 
tained his  absolute  discharge  from  it.  And  that  on  the  15th  of 
August  1818,  Joseph  Lytle,  the  defendant  in  this  case,  paid  1000 
dollars  to  Mrs  Evans  on  her  bond,  as  the  surety  of  John  Pedan.  All 
this  evidence  so  offered  to  be  given  was  objected  to  by  the  plaintiff's 
counsel,  and  overruled  by  the  court,  and  is  made  the  ground  of  the 
first,  second  and  third  reasons  assigned  by  the  -defendant  for  his 
taking  his  appeal  to  this  court. 

It  is  very  apparent  that  so  far  as  any  part  of  the  evidence  thus 
offered,  tended  to  show  that  Henry  Share  had  received  money  be- 
longing to  John  Pedan,  which  he  had  not  accounted  for  or  paid  over 
to  him  before  the  commencement  of  the  suit  in  his  name,  by  Henry 
Haines  against  James  Mehaffy;  or  that  Joseph  Lytle  had  paid  money  as 
the  surety  of  John  Pedan  to  Mrs  Evans  upon  her  bond  before  that  time ; 
it  might  have  been  given  in  evidence  by  way  of  defence  in  that  suit: 
and  as  Joseph  Lytle  had  full  notice  given  to  him  by  James  Mehaffy  of 
that  suit  being  brought,  and  that  he  must  defend  it ;  and  as  it  was 
proved,  indeed,  by  his  own  witness,  General  Porter,  that  he  did  at- 
tend to  the  trial  of  it;  it  was  incumbent  on  him  to  have  given  that 
evidence  then,  if  he  ever  intended  to  offer  it ;  because,  unless  given 
then,  it  could  in  no  wise  relieve  James  Mehaffy  afterwards;  and  this 
was  what  Joseph  Lytle  had  undertaken  by  his  bond  to  do.  By  the 
express  terms  of  the  condition  of  this  bond,  he  was  bound  to  keep 
James  Mehaffy  indemnified  against  the  delinquency  of  John  Pedan; 
and  if  Pedan's  share  of  the  bond  to  Mrs  Evans  was  paid  by  John 
Pedan  himself,  by  Joseph  Lytle,  or  by  any  other  than  Henry  Share, 
before  it  was  paid  out  of  the  money  arising  from  the  sale  of  his  estate, 
Joseph  Lytle  ought  to  have  shown  it  on  the  trial  of  the  suit  against 
James  Mehaffy;  because,  by  omitting  to  do  so,  he  made  James  Me- 
haffy liable,  inevitably,  to  pay  it  again,  and  he  shall  not  be  permitted 
to  take  advantage  of  his  own  neglect  of  duty  to  prejudice  James 


May  1833.]  OF  PENNSYLVANIA.  317 

[Mehaffy  v.  Lytle.] 

^Mehaffy,  contrary  to  the  condition  of  the  bond  which  is  in  suit :  and 
beside,  Joseph  Lytle  was  as  much  a  party  to  that  trial  as  James  Me- 
haffy, and  is  thereby  estopped  in  like  manner  to  gainsay  the  correct- 
ness of  the  judgment  rendered. 

As  to  the  articles  of  agreement  between  James  Jlnderson  and  Henry 
Share,  and  again  between  Henry  Share  and  John  Pedan,  James  Me- 
haffy and  others,  I  can  not  perceive  the  relevancy  or  bearing  of  them 
in  this  cause.     It  was  not  proposed  to  prove  that  John  Pedan  ever 
paid  a  cent  towards  this  purchase  of  James  Jlnderson.     The  only 
money,  amounting  to  15,000  dollars,  which  appeared  to  have  been 
paid  upon  it,  was  paid  by  Henry  Share,  according  to  the  indorse- 
ments entered  upon  the  articles  of  agreement.     This  might  show 
that  Henry  Share  had  some  substantial  interest  in  the  land  which 
might  have  been  taken  in  execution  and  sold  for  his  debts,  but 
could  vest  no  real  interest  in  John  Pedan,  and  would  not  have 
made  it  admissible  if  it  had,  for  the  reasons  given.     And  the  fad  of 
James  Mehaffy  having  got  a  conveyance  for  part,  was  some  evidence 
perhaps  of  his  having  paid  his  proportion  of  the  purchase  money;  but 
certainly  not  any,  that  John  Pedan  had  ever  paid  any  part  of  his ; 
and  therefore  could  neither  give  John  Pedan  any  real  interest  in  the 
property,  nor  form  any  objection,  that  I  can  see,  to  Joseph  Lytle's 
indemnifying  James  Mehaffy  according  to  the  tenor  of  his  bond,  and 
the  condition  thereof.     It  could  not  in  the  slightest  degree  go  to 
show  that  Mehaffy  had  either  money  or  property  belonging  to  John 
Pedan  in  his  hands  or  under  his  control,  out  of  which  he  might  or 
could  have  satisfied  the  judgment  either  in  part  or  in  whole,  obtained 
against  him  at  the  suit  of  Henry  Share.     And  in  respect  to  that 
part  of  the  offer  which  related  to  the  sales  of  the  town  lots,  and 
the  receipt  of  the  moneys  arising  from  them  by  James  Mehaffy,  it 
appears  to  me,  in  the  first  place,  that  it  was  too  indefinite  ;  for  if  it 
happened  before  the  giving  of  the  bond  in  suit,  the  presumption 
would  be,  that  so  far  as  John  Pedan  had  an  interest  in  it,  it  was  set- 
tled for  at  or  before  that  time  ;  for  Mehaffy  could  not  with  any  pro- 
priety have  asked  John  Pedan  for  an  indemnity  against  the  payment 
of  his  proportion  of  Mrs  Evans's  bond  when  he  had  funds  of  Pedan  in 
his  own  hands,  with  which  he  could  do  it ;  nor  can  it  be  believed 
that  John  Pedan  under  such  circumstances  would  have  given  this 
bond  of  indemnity.     But  if  it  were  intended  to  show  that  James 
Mehaffy  had.  received  such  moneys  after  the  giving  of  the  bond  in 
suit,  then,  I  think,  as  the  receipt  of  their  moneys  had  no  connexion 
with  the  object  of  the  bond  in  suit,  and  as  it  was  not  proposed  to 
prove  that  James  Mehaffy  had  any  direction!  from  John  Pedan  to 
apply  his  portion  of  the  money  so  received  to  the  payment  of  his 
proportion  of  the  sum  due  on  Mrs  Evans's  bond,  it  might  have  taken 
the  plaintiffs  by  surprise,  and  have  done  them  great  injustice  to  have 
admitted  the  evidence  without  the  defendant's  having  given  a  pre- 
vious notice  in  writing  of  his  intention  to  do  so  on  the  trial  of  the 
cause ;  for  had  such  notice  been  given  to  James  Mehaffy,  he  might 


318  SUPREME  COURT  [Lancaster, 

[Mehaffy  v.  Lytle.] 

have  been  prepared  possibly  to  have  shown  that  all  the  money  so 
received  by  him  had  been  accounted  for,  and  applied  otherwise  by 
the  direction  of  John  Pedan.  I  therefore  think  that  the  chief  justice 
was  clearly  right  in  overruling  this  part  of  the  evidence  offered,  be- 
cause previous  notice  in  writing  had  not  been  given,  according  to 
the  rule  of  court  on  the  subject.  And  if  James.  Mehaffy  obtained 
any  discharge  from  Mrs  Evans  that  could  have  discharged  him  from 
the  suit  which  Haines  brought  in  the  name  of  Henry  Share  against 
him,  it  was  not  pretended  that  he  concealed  it  from  the  defendant 
in  this  action  or  from  any  of  his  co-obligors  name'd  in  the  bond  to 
Mrs  Evans,  or  that  it  was  not  known  to  Joseph  Lytle  on  the  trial  of 
the  cause  by  Share  against  Mehaffy,  as  well  as  it  is  now ;  and  that 
was  the  time  to  have  set  it  up  as  a  defence  in  order  to  indemnify 
Mehafy ;  but  if  the  discharge  was  not  such  as  would  have  discharged 
James  Mehaffy  from  the  claim  of  Henry  Share,  after  Mrs  Evans  had 
obtained  a  judgment  against  Share  and  all  his  joint  co-obligors,  in- 
cluding the  defendant  himself  in  this  action,  with  the  exemption  of 
J\fehaffy,  on  whom  the  writ  was  not  served,  and  who  does  not  appear 
to  have  known  any  thing  about  the  suit  and  the  judgment  had  in 
it — and  I  confess  that  I  am  at  a  loss  to  conceive  what  kind  of  a  dis- 
charge it  must  have  been  to  have  had  such  an  effect — it  could  avail 
nothing  in  either  suit,  and  was  therefore  inadmissible. 

These  remarks  are  sufficient  to  dispose  of  the  three  first  reasons  ; 
and  the  fourth  remains  now  to  be  considered,  which  is,  as  I  under- 
stand it,  an  objection  to  the  plaintiffs'  declaration,  that  it  does  not 
set  forth  such  a  cause  of  action  as  shows  that  the  plaintiffs  are  enti- 
tled to  recover  in  this  case. 

It  is  first  objected,  that  it  declares  the  suit  is  "for  the  use  of  James 
Mehaffy,  so  far  as  relates  to  his  interest  in  the  bond"  And  that  after 
setting  out  the  bond  and  its  condition,  as  also  the  bond  given  to  Mrs 
Evans,  which  is  referred  to  in  the  bond  on  which  the  declaration  is 
drawn,  together  with  the  suit  and  judgment  had  upon  it,  and  the 
payment  of  the  same  out  of  the  moneys  arising  from  the  sale  of  Henry 
Share's  property  ;  and  again,  the  suit  and  judgment  had1,  in  conse- 
quence thereof,  against  James  Mehaffy  at  the  suit  of  Henry  Share, 
for  the  use  of  Henry  Haines ;  the  plaintiffs  say,  "  by  reason  of  which 
premises  the  said  James  hath  sustained  large  damages,  to  wit,  to  the 
amount,  &c.,"  and  superadd,  "  by  reason  of  which  breaches  the  said 
writing  obligatory  became  forfeited,  and  action  hath  acccrued  to  them, 
the  said  James  Mehaffy  and  James  Duffy,  who  sue  for  the  use  of  the 
said  James  Mehaffy,  so  far  as  relates  to  his  interest  on  the  said  bond  of 
indemnity,  to  have  and  demand. from  the  said  Joseph  Lytle,  who  sur- 
vived the  said  John  Pedan,  the  said  sum  of  7233  dollars  and  41  cents  ; 
yet  the  said  Joseph  Lytle,  although  often  requested,  &c.,  hath  not 
paid,  &c.,  to  the  damage  of  them,  said  James  Mehaffy,  and  James 
Duffy,  7233  dollars  and  41  cents,  and  therefore  they  bring  their  suit, 
&c."  Now,  although  there  may  be  some  useless  and  unnecessary 
verbiage  introduced  into  this  declaration,  yet,  I  apprehend,  that  it 


May  1833.]  OF  PENNSYLVANIA.  319 

[Mehaffy  v.  Lytle.] 

contains  every  thing  that  is  necessary,  when  proved,  to  entitle  the 
plaintiffs  to  a  recovery.  Utile  per  inutile  non  vitiatur,  is  the  maxim  of 
law  in  respect  to  this.  The  bond  upon  which  this  suit  is  founded, 
is  joint  in  its  terms  to  James  •Mehaffy  and  James  Duffy.  Although  the 
suit  is  stated  to  be  for  the  use  of  James  Mehaffy,  yel  it  is  legally,  and 
technically,  and  properly  too;  a  joint  action  by  them  both  against 
Joseph  Lytle.  To  enable  the  plaintiffs  to  maintain  their  action  on 
this  bond,  it  was  not  necessary  that  they  should  have  been  compelled 
to  pay  more  on  account  of  the  delinquency  of  John  Pedan,  out  of  their 
joint  funds  ;  nor  that  they,  or  either  of  them,  should  have  paid  it  on 
a  proceeding  or  judgment  had  against  them  jointly.  The  terms  of 
the  condition  of  the  bond  are  such  as  to  show,  beyond  a  doubt,  that  it 
was  given  for  the  purpose  of  protecting  both  or  either  of  the  joint  ob- 
ligees. The  words  are,  "keep  harmless,  and  indemnify  the  said 
James  Mehaffy  and  James  Duffy,  their  heirs,  executors  and  administra- 
tors, and  his  and  their  goods  and  chattels,  lands  and  tenements,  &c." 
Hence  a  payment  of  money  made  by  either  James  Mehaffy  or  James 
Duffy,  by  reason  of  John  Pedan's  having  failed  to  pay  his  proportion 
of  the  debt  due  to  Mrs  Evans,  would  create  a  forfeiture  of  the  bond 
in  suit,  and  enable  the  obligees  to  maintain  a  joint  action  ;  and  in  no 
other  form,  perhaps,  could  it  be  maintained,  as  the  bond  is  joint ;  but 
still  it  would  be  necessary  to  set  forth  and  state  the  breach  according 
to  the  truth  of  the  facts,  as  appears  to  have  been  done  in  this  case, 
judging  from  the  evidence  that  was  given  on  the  trial  of  the  cause. 
The  facts  set  forth  in  this  declaration  show  most  clearly  a  forfeit- 
ure of  the  bond,  and  a  right  upon  the  part  of  the  plaintiffs  to  maintain 
this  action.  If  the  words  declaring  it  to  be  for  the  use  of  James  Me- 
haffy had  been  omitted,  the  breach  assigned  shows  unquestionably 
that  he  is  the  party  really  injured  by  it,  and  the  recovery  would,  by 
operation  of  law,  necessarily  result  to  his  use  ;  and  surely,  it  would 
be  most  strange  indeed  if  it  could  be  made  error  to  declare  a  suit  for 
the  same  use  which  the  law,  from  the  facts  set  forth,  would  neces- 
sarily imply  it. 

The  conclusion  of  the  plaintiffs  set  forth  in  their  declaration,  im- 
mediately after  the  assignment  of  the  breach  of  the  condition  of 
the  bond,  in  these  words,  "by  means  of  which  premises  the  said 
James  hath  sustained  large  damages,  to  wit  7233  dollars  and  41 
cents,"  has  been  excepted  to,  and  pressed,  seemingly  with  great 
earnestness ;  but  there  is  nothing  in  it  incompatible  with  the  for- 
feiture of  the  bond  as  previously  set  forth,  nor  yet  with  the  right  of  the 
plaintiffs  to  maintain  this  action.  Neither  do  I  think,  that  there  is 
any  weight  in  the  objection  made  to  the  declaration  on  account  of 
the  following  words,  "  so  far  as  relates  to  his  interest  (meaning  Me- 
haffy), in  the  said  bond  of  indemnity,  &c.,"  which  are  introduced  in 
several  places,  with  a  view,  as  is  alleged,  of  reserving  the  right  of 
James  Duffy  to  maintain  another  suit  upon  this  same  bond  for  his  use. 
I  do  not  believe  that  a  reservation,  made  in  the  most  unambiguous 


320  SUPREME  COURT  [Lancaster, 

[Mehaffy  v.  Lytle.] 

terms  that  could  be  imagined  to  that  effect,  would  avail  any  thing 
more  than  if  every  thing  of  the  kind  were  omitted  ;  so  that  it  can 
work  no  injury  to  the  defendant,  and  is  therefore  not  to  be  regarded 
as  having  any  effect  whatever. 

We  think  that  the  judgment  of  the  circuit  court  is  right. 

Judgment  affirmed. 


Wetherill  against  Keim. 

In  a  proceeding  in  partition  by  one  plaintiff  against  several  defendants,  the  in- 
quest must  set  out  in  severally,  not  only  the  part  of  the  plaintiff  but  of  each  of  the 
defendants  ;  and  if  the  land  can  not  be  divided  so  as  to  accommodate  each  severally, 
it  must  be  valued ;  without  such  valuation  the  inquisition  is  irregular. 

ERROR  to  the  common  pleas  of  SchuyJkill  county. 

This  was  an  action  of  partition  by  John  JM.  Keim  against  Samuel 
P.  Wetherill,  John  P.  Wetherill,  .Charles  Wetherill,  William  Wetherill, 
and  Rebecca  Gumbes,  to  have  partition  of  several  tracts  of  land,  ad- 
joining each  other,  containing  four  hundred  acres.  Judgment  quod 
partitio  fiat,  was  entered,  and  a  writ  de  partitione  facienda  was  issued. 
The  jury  of  inquest  divided  the  lands  into  two  parts  by  metes  and 
bounds,  and  allotted  one  part  to  the  plaintiff  John  M.  Keim,  and  al- 
lotted the  other  part  to  all  the  defendants,  having  found  that  it 
would  not  divide  without  injury  to  the  whole.  The  jury  did  not 
put  a  valuation  upon  either  part.  The  court  below  were  asked  to 
set  aside  the  inquisition  for  these  reasons. 

1.  The  jury  did  not  divide  the  land  into  six  parts. 

2.  The  jury  did  not  appraise  the  parts  into  which  they  divided  the 
land,  pursuant  to  the  act  of  llth  of  April  1799. 

3.  The  court  erred  in  rendering  the  judgment  quod  partitio  fiat, 
because  the  writ  and  declaration  of  the  plaintiff  did  not  embrace  all 
the  lands  held  by  the  plaintiff  and  defendants,  as  tenants  in  common 
in  the  county  of  Schuylkill. 

The  court  refused  to  set  aside  the  inquisition  on  any  of  these 
grounds ;  and  this  writ  of  error  was  sued  out,  and  the  same  errors 
were  assigned  here. 

Parry  and  Leoser,  for  plaintiffs  in  error,  cited  Statute  31  Hen.  8,  ch. 
31 ;  32  Hen.  8,  ch.  32;  Rob.  Dig.  217,  224;  1  Th.  Co.  Lit.  806; 
2  Cruise's  Dig.  tit.  Joint  Tenant  507  ;  Ibid.  538  ;  2  Black.  Com.  189  ; 
1  Perms.  Black.  477 ;  2  Com.  Dig.  732 ;  8  Com.  Dig.  App.  to  Chan, 
title  Partition  825  ;  Acts  of  Assembly  of  llth  of  April  1799  ;  1th  of 
April  1807;  5th  of  February  1821 ;  Rex  v.  Rex,  3  Serg.  fy  Rawle 
536  ;  YelbacKs  Appeal^  Serg.  #  Rawle  207 ;  Young  v.  Bichel,  I  Serg. 
Sf  Rawle  468. 


May  1833.]  OF  PENNSYLVANIA,  321 

[Wetherill  v.  Keim.] 

Biddle,  for  defendant  in  error,  cited,  3  Chit.  PI.  671 ;  3  Johns. 
Cha.  Rep.  202 ;  1  Johns.  Cha.  Rep.  271. 

The  opinion  of  the  Court  was  delivered  by 

ROGERS,  J. — At  common  law,  on  a  writ  of  partition,  the  court 
examined  the  title,  and  quantity  of  the  purparts  of  the  plaintiff,  and 
the  inquest  set  out  in  severally,  by  metes  and  bounds,  his  share  alone; 
but,  by  the  act  of  the  5th  of  February  1821  (Purd.  Dig.  685),  entitled 
a  supplement  to  the  several  acts  of  this  common  wealth,  the  legislature 
have  declared,  "  that  in  all  cases,  when  a  writ  of  partition  hath  been, 
or  may  be  issued,  by  any  of  the  courts  of  this  commonwealth,  having 
jurisdiction  thereof,  at  the  suit  of  one  joint-tenant,  co-partner  or 
tenant  in  common,  against  two  or  more  defendants,  and  notice  there- 
of is  made,  or  given  in  conformity  with  law,  the  court  from  which 
the  said  writ  hath  issued,  or  may  issue,  shall,  upon  the  appearance  of 
the  parties,  or  on  default  being  made,  proceed  to  examine  the  title  and 
quantity  of  the  parts  or  purparts  of  the  respective  defendants,  as  well 
as  of  the  plaintiffs ;  and  accordingly  as  they  shall  find  the  said  titles 
and  quantity  of  the  parts  or  purparts  to  be,  they  shall  give  judgment, 
and  award  a  writ  to  make  partition,  whereby  such  purparts  shall  be 
set  out  in  severally,  and  the  like  proceedings,  as  to  judgment  and  in 
all  other  respects,  shall  and  may  take  place  and  be  had,  as  are  now 
required  or  authorized  when  the  purpart  of  the  plaintiff  is  alone  set 
out  in  severally;  provided  always,  that  if  all  the  said  defendants 
shall,  on  or  before  Ihe  relurn  day  of  the  said  writ,  by  writing  filed 
in  Ihe  said  courl,  declare  Iheir  wish  lhal  Iheir  interest  in  the  pre- 
mises, whereof  the  plaintiff  seeks  partition,  may  remain  undivided, 
then  and  in  such  case,  the  plaintiff's  purpart  shall  alone  be  set  out, 
any  thing  herein  to  the  contrary  notwithstanding." 

John  M.  Keim  issued  a  summons  in  partilion  against  the  several 
defendants  named ;  and  the  court  of  common  pleas,  on  the  4th  of 
January  1832,  gave  judgment  quod  partitio  fiat.  On  the  5th  of 
January  1833,  the  court  adjudged  thai  Ihe  purparls  of  the  defend- 
ants, being  one-tenth  of  the  whole  for  each  of  the  defendants,  be  sel 
out  in  severally,  as  well  as  the  moiety  adjudged  to  the  plainliff.  It 
appears  on  the  record  lhal  the  defendants,  instead  of  declaring  their 
wish  that  Iheir  inleresl  in  Ihe  premises  should  remain  undivided,  had 
a  judgmenl  entered  by  the  court,  in  due  form,  by  which  it  became 
the  duty  of  the  inquest  to  set  out  in  severally  Iheir  respeclive  inler- 
ests,  as  well  as  the  interesl  of  Ihe  plainliff.  Il  became,  ihen,  neces- 
sary for  Ihe  inquest  to  inquire,  whether  Ihe  premises  would  admit  of 
division  into  six  parts  ;  the  one-half  to  be  allolled  lo  Ihe  plainliff, 
and  Ihe  one-tenth  to  each  of  the  defendanls.  The  inquest  have  set 
out,  by  metes  and  bounds,  Ihe  one-half  of  ihe  properly  to  John  M. 
Keim,  in  severally ;  and  have  relurned  that  they  cannol  divide  and 
apporlion  the  other  moiety  among  the  several  respective  defendants. 
This  is  in  effect  a  return  by  the  inquest,  that  the  property  would  not 
admit  of  division  into  six  parts,  according  to  the  judgment.  It  be- 


322  SUPREME  COURT  [Lancaster, 

[Wetherill  v.  Keim.] 

came  then,  the  duty  of  the  inquest  to  inquire,  and  return,  whether 
the  lands  and  tenements  could  be  divided  according  to  the  command 
of  the  writ,  without  prejudice  to  or  spoiling  the  whole ;  and  if  it 
would  not  admit  of  division,  to  make  and  return  to  the  court  a  just 
valuation  and  appraisement  of  the  lands  and  tenements  :  so  that 
such  proceedings  might  be  had  thereon,  as  is  directed  by  the  act 
concerning  writs  of  partition,  passed  the  1 1  th  of  April  1799,  to  which 
the  act  of  1821  is  a  supplement.  That  a  valuation  must  be  made 
when  the  lands  cannot  be  divided  is  apparent,  from  the  act  of  the 
5th  of  February  1821,  which  prescribes,  that  in  cases  where  there 
are  two  defendants,  the  court  shall  give  judgment,  and  accord  a  writ 
of  partition,  whereby  such  purparts  shall  be  set  out  in  severally,  and 
the  like  proceedings,  as  to  judgment  and  in  all  other  respects,  shall 
and  may  take  place,  and  be  had,  as  are  now  required,  or  authorized, 
where  the  purpart  of  the  plaintiff  is  alone  set  out  in  severally.  The 
object  of  the  act  of  1821  is  to  avoid  the  expense  and  trouble  which 
atlend  the  execution  of  several  writs  of  partilion ;  and  that  the  parls 
of  all  should  be  sel  oul  in  severally  by  Ihe  same  inquest,  and  at 
the  same  time.  A  different  construction  of  the  act  would  defeat  the 
intention  of  the  legislature.  We  are  of  the  opinion,  that  the  pro- 
ceedings are  not  in  accordance  with  the  judgment  of  the  court,  and 
the  several  acts  of  assembly ;  and  that  the  inquest  and  proceedings 
therein  should  be  set  aside. 
Proceedings  set  aside. 


Duncan  against  Duncan. 

Whether  an  instrument  of  writing  be  under  seal  or  not,  is  a  question  of  law  to  be 
solved  by  the  court  from  the  inspection  of  the  paper  itself. 

An  horizontal  slit  in  the  parchment  upon  which  a  conveyance  is  written,  with  a 
ribbon  drawn  through  it  opposite  the  name  of  the  justice  before  whom  the  acknow- 
ledgement was  made,  is  not  a  sufficient  seal  to  constitute  a  deed. 

The  acts  of  assembly  of  the  28th  of  May  1715,  24th  of  February  1770, 18th  of 
March  1775,  and  the  18th  of  March  1814,  providing  a  mode  for  taking  the  acknow- 
ledgement of  deeds  by  justices,  aldermen  and  judges,  are  all  in  pan  materia;  and 
their  construction  requires  that  the  acknowledgement  taken  by  any  of  these  officers 
should  be  certified  under  their  hand  and  seal,  in  order  to  justify  the  recording  of  the 
deed,  or  make  it  admissible  in  evidence  without  the  common  law  proof  of  its  exe- 
cution. 

APPEAL  from  the  circuit  court  of  Dauphin  county,  held  by  Jus- 
tice Rogers. 

This  was  an  action  of  ejectment  for  an  island  at  the  junction  of 
the  Susquehanna  and  Juniata  rivers,  by  Stephen  Duncan  against 
Rebecca  Duncan. 

The  plaintiff,  in  order  to  support  his  title,  gave  in  evidence  the 


May  1833.]  OF  PENNSYLVANIA.  323 

[Duncan  v.  Duncan.] 

will  of  the  honourable  Thomas  Duncan,  containing  this  clause :  "  my 
island,  bought  of  John  Reed,  at  the  mouth  of  the  Juniata,  I  desire  to 
be  appraised  by  three  persons,  to  be  selected  by  my  executors,  and  if 
my  son  Stephen  will  accept  the  same  at  the  valuation,  then  it  is  to 
be  conveyed  to  him  in  fee  simple,  he  securing  the  purchase  money  by 
mortgage  on  the  premises,  which  purchase  money  is  to  be  consider- 
ed as  part  of  my  estate  ;  if  he  refuses  to  take  it,  then  it  is  to  be  sold 
by  my  executors."  He  then  gave  in  evidence,  the  appointment  of 
the  appraisers  ;  their  valuation  of  the  property  ;  and  his  acceptance 
of  the  same  at  the  valuation  ;  and  then  offered  in  evidence  a  convey- 
ance from  Martha  Duncan,  executrix,  Edward  J.  Stiles  and  John  D. 
JVLahon,  executors  of  Thomas  Duncan,  esquire,  deceased,  to  Stephen 
Duncan.  This  conveyance  was  signed  by  the  grantors,  and  opposite 
the  name  of  each,  there  was  an  horizontal  slit  in  the  parchment  on 
which  it  was  written,  and  a  blue  ribbon  was  drawn  through,  extend- 
ing along  all  the  names.  The  acknowledgement  by  John  D.  Ma- 
hon  and  Edward  J.  Stiles,  was  made  before  a  justice  of  the  peace, 
and  that  of  Martha  Duncan  was  made  before  the  Chief  Justice,  and 
the  certificate  of  each,  in  the  body  of  it,  purported  to  be  under  their 
hands  and  seals,  but  the  seals  were  such  as  those  opposite  the  names 
of  the  grantors.  The  ribbon  was  not  attached  to  the  parchment 
otherwise  than  that  it  passed  through  the  slits  in  the  parchment. 

The  defendant  objected  to  this  conveyance,  on  the  ground  that  it 
was  not  sealed  and  that  the  certificate  of  the  justice  of  the  peace 
and  that  of  the  chief  justice  were  not  under  seal.  These  objections 
were  sustained  by  the  court,  and  the  plaintiff  took  a  nonsuit,  which 
he  afterwards  moved  the  court  to  take  off,  and  assigned  these  rea- 
sons: 

1.  The  court  erred  in  rejecting  the  conveyance  offered  in  evidence. 

2.  The  plain  tiff  should  have  been  permitted  to  maintain  his  action 
upon  the  evidence  given,  without  the  conveyance. 

The  court  overruled  the  motion,  and  the  defendant  appealed. 
The  same  reasons  were  assigned  in  this  court. 

Attorney-General  Lewis,  Foster  and  PTeidman,  for  appellants, 
cited,  the  acts  of  assembly  of  the  28th  of  May  1715,  24th  of  Febru- 
ary 1770,  18th  of  March  1775,  and  18th  of  March  1814,  and  con- 
tended that  the  act  of  the  28th  of  May  1715,  was  the  only  one 
which  required  that  the  certificate  should  be  under  the  seal  of  the 
justice.  Upon  the  passage  of  this  act,  a  justice  of  the  peace  was  the 
only  officer  who  had  power  to  take  the  acknowledgement  of  a  deed  ; 
but  when  that  power  was  extended  to  judges,  and  subsequently  to 
aldermen,  the  acts  of  assembly  do  not  require  that  the  certificate 
should  be  under  seal ;  it  was  a  mere  matter  of  form,  which  the 
legislature  deemed  proper  to  dispense  with.  And  that  a  seal  is  not 
necessary  to  the  validity  of  an  acknowledgement  by  a  judge,  is  set- 
tled by  the  case  of  Whitmire  v.  JVopier,  4  Serg.  4"  Rawle  290. 

But  these  certificates  were  sealed.     In  Pennsylvania,  a  seal  need 


324  SUPREME  COURT  [Lancaster, 

[Duncan  v.  Duncan.] 

not  be  composed  of  wax,  or  ink,  or  any  other  material ;  if  the  inten- 
tion of  the  party  to  affix  a  seal  to  his  name  manifestly  appears,  it  is 
all  the  law  requires.  On  this  point  were  cited,  1  Dall.  63  ;  6  Mod. 
45 ;  1  Wash.  C.  C.  Rep.  42  ;  2  Caines's  Rep.  362.  The  plaintiff's 
counsel  also  contended,  that  whether  the  certificates  were  sealed  or 
not,  was  a  matter  of  fact  which  should  have  been  referred  to  the 
jury  to  determine.  The  plaintiff  should  have  been  permitted  to 
maintain  his  action  upon  the  evidence  given  :  the  devise  was  proved ; 
the  appraisement  was  made ;  and  he  had  accepted  ;  so  that  every 
thing  was  done  to  entitle  him  to  a  conveyance,  which  a  court  of 
chancery  would  have  compelled  the  executor  to  make ;  and  if  so,  he 
could  recover,  in  ejectment,  without  a  conveyance. 

Watts  and  M'Clure,  for  appellees. 

A  seal  is  essential  to  the  validity  of  a  deed.  Jackson  v.  Wood, 
12  Johns.  Rep.  72  ;  Warren  v.  Lynch,  5  Johns.  Rep.  239  ;  Hollidayv. 
Marshall,  7  Johns.  Rep.  21 1  ;  2  Black.  Comm.  227,  312 ;  Wood's 
Conv.  125,  PowePs  Ed. ;  Co.  Litt.  35  ;  4  Kent's  Comm.  450.  So  long 
as  there  remains  a  distinction  in  the  forms  of  action,  it  will  be  neces- 
sary to  maintain  a  broad  line  of  difference  between  that  which  is  a 
sealed  instrument,  and  that  which  is  not.  The  courts  have  gone 
very  far,  in  Pennsylvania,  to  give  a  flourish  with  a  pen  the  charac- 
ter of  a  seal ;  but,  to  go  further,  would  be  to  lose  sight  of  what  was 
or  was  not  a  seal.  5  Binn.  241.  The  certificates  were  not  under 
the  seals  of  the  officers.  It  is  essential  that  a  seal  be  so  permanent 
and  durable,  that  no  difficulty  can  arise  in  determining  whether  the 
instrument  be  sealed  or  not.  It  must  be  tried  by  inspection,  and  by 
the  court.  The  slit  in  the  parchment  cannot  be  called  a  seal ;  the 
riband  seen  through  it  cannot  be  so  called  ;  nor  can  both  together  ; 
for  although  together  now,  they  may  not  be  so  long.  A  recorder 
would  be  authorized  to  put  the  deed  on  record,  if  the  riband  and  slit 
made  a  seal ;  but  if  the  riband  should  fall  out,  he  would  not. 

The  plaintiff's  second  point  was  not  made  in  the  court  below ;  he 
did  not  offer  to  let  his  cause  go  to  the  jury,  upon  the  evidence  given, 
without  the  conveyance.  But  if  he  had,  he  could  not  have  recovered. 
Conditions  annexed  to  the  exercise  of  a  power,  must  be  complied 
with  strictly,  however  unessential  they  may  be  :  the  person  creating 
the  power  may  impose  what  checks  he  pleases.  If  a  deed  be  re- 
quired, it  cannot  be  executed  by  will.  4  Kent's  Comm.  330.  The 
will  directs  that  a  conveyance  shall  be  made  to  the  plaintiff;  and  this 
is  the  language  of  one  who  well  knew  the  meaning  of  technical 
terms. 

The  opinion  of  the  Court  was  delivered  by 

KENNEDY,  J. — This  is  an  appeal  from  the  decision  of  the  circuit 
court,  lately  held  at  Harrisburgh,  for  Dauphin  county.  On  the  trial 
of  the  cause  before  his  honour,  Mr  Justice  Rogers,  the  plaintiff  offered 
to  read  in  evidence  an  instrument  of  writing,  purporting  to  be  a  con- 


May  1833.]  OF  PENNSYLVANIA.  325 

[Duncan  v.  Duncan.] 

veyance  from  Martha  Duncan,  executrix,  Edward  J.  Stiles  and  John 
D.  Malion,  executors  of  the  last  will  of  the  late  Hon.  Thomas  Dun- 
can, deceased,  to  Stephen  Duncan,  the  plaintiff:  which  was  objected  to 
by  the  counsel  of  the  defendants,  because  the  certificate  of  the  ac- 
knowledgement of  the  execution  thereof,  by  Martha  Duncan,  which 
appeared  to  have  been  taken  by  the  chief  justice  of  this  court,  and 
the  certificate  of  the  like  acknowledgement  of  Edward  J.  Stiles  and 
John  D.  Mahon,  the  other  grantors,  which  appeared  to  have  been 
taken  by  Archibald  Ramsay,  stating  himself,  in  the  body  of  the  cer- 
tificate, to  be  a  judge  of  the  court  of  common  pleas  of  Cumberland 
county,  in  this  state,  but  who  was,  in  fact,  only  a  justice  of  the  peace  of 
that  county,  were  given  by  these  officers,  respectively,  under  their 
hands  merely,  without  being  under  their  seals. 

Two  questions  have  been  raised  upon  the  argument.  First, 
Whether,  in  point  of  fact,  a  seal  is  not  affixed  to  each  of  the  certifi- 
cates 1  And  second,  If  not,  whether  it  be  requisite,  under  our  re- 
cording acts,  that  such  certificate  should  be  given  under  the  seal  of 
the  officer  taking  the  acknowledgement  ? 

The  body  of  the  conveyance,  and  the  certificates,  appeared  all  to 
have  been  drawn  in  the  same  handwriting.  The  conveyance  is  written 
on  parchment,  in  the  margin  of  which,  at  the  end  of  the  name  of 
each  of  the  grantors,  and  of  the  officers  respectively  subscribed  to  the 
certificates  of  acknowledgement,  incisions  or  slits  are  made,  in  an  hori- 
zontal direction,  apparently  with  a  knife,  and  a  blue  riband  weaved 
through  them  by  the  scrivener,  who,  no  doubt,  intended  that  the 
riband,  which  covered  about  five-eighths  of  an  inch  square  of  the 
parchment,  at  the  end  of  each  name,  should,  at  the  time  of  signing, 
have  been  been  covered  with  a  seal  of  wax,  and  by  means  thereof, 
have  been  attached  to  or  incorporated  with  the  parchment,  which 
was  neglected.  In  the  conclusion  of  the  conveyance,  the  words, 
"  we  have  set  our  hands  and  affixed  our  seals"  are  inserted  ;  and 
likewise  in  each  of  the  certificates,  it  is  stated  to  have  been  given 
"under  my  hand  and  seal,"  but  no  scroll,  wax,  wafer,  or  any  thing 
more  than  the  riband  is  used,  as  already  mentioned,  to  denote  a  seal 
affixed  to  any  of  the  signatures. 

It  has  been  contended  that  the  riband  inserted  in  the  parchment, 
in  the  manner  described,  was  sufficient  in  law  to  constitute  a  seal,  if 
so  intended  by  the  party ;  and  that  it  ought,  therefore,  to  have  been 
received  in  evidence,  and  submitted  to  the  jury  as  a  matter  of  fact 
to  be  decided  on  by  them,  whether  the  riband  was  used  with  that 
intent  or  not. 

This  argument  may  be  ingenious,  and,  at  first  view,  somewhat 
plausible  ;  but  a  moment's  reflection  will  show,  as  it  appears  to  me, 
that  it  is  not  solid,  and  cannot  answer  the  design  of  the  law  in  regard 
to  seals.  I  apprehend  that  whether  an  instrument  of  writing  be 
under  seal  or  not,  is  a  question  of  law  to  be  solved  by  the  court  from 
the  inspection  of  the  instrument  itself.  It  is  highly  important  to  the 
interests  of  society,  that  every  man  should  be  able  to  determine  with 


336  SUPREME  COURT  [Lancaster, 

[Duncan  v.  Duncan.] 

certainty  upon  looking  at  an  instrument  of  writing,  whether,  if  ge- 
nuine, it  is  a  deed  or  not,  that  is,  whether  it  has  what  the  law 
denominates  a  seal  affixed  to  it  or  not;  but  it  must  be  obvious  that 
unless  the  true  character  of  a  seal  is  fixed  by  the  law,  which  is  uni- 
form and  certain,  and  may  be  known  by  every  one,  it  will  be  often- 
times impossible  to  determine  whether  an  instrument  of  writing  is  a 
deed  or  not.  If  parties  are  permitted  to  substitute  any  mark  or  device 
which  their  imagination  may  suggest  for  a  seal,  and  it  is  to  be  made 
a  question  of  fact  to  be  decided  by  a  jury  whether  it  was  so  intended 
or  not;  it  will  not  only  introduce  great  confusion  and  uncertainty, 
but  a  principle  which  cannot  be  carried  into  effect  without  repealing 
some  of  the  provisions  of  our  statutes  providing  for  the  recording  of 
deeds. 

Every  recorder  of  deeds  and  conveyances  of  land  within  the  state, 
is  bound  to  make  a  true  and  faithful  record  of  all  such  as  shall  be 
handed  to  him  for  that  purpose,  after  that  they  have  been  duly  ac- 
knowledged or  proved  ;  but  if  the  law  is  not  to  determine  what  shall 
constitute  a  seal — which  is  the  distinguishing  characteristic  of  a  deed 
from  other  instrumentsof  writings — without  the  intervention  of  a  jury, 
how  is  the  recorder  to  decide  whether  he  shall  record  it  as  a  deed  or 
not?  that  is,  with  the  seal  of  the  party  affixed  to  it  or  without  it? 
It  is  obvious  that  unless  the  question,  What  shall  be  considered  a  seal? 
be  referred  to  the  law,  to  be  settled  by  some  fixed  rule  determining 
its  precise  character  ;  that  every  recorder  of  deeds  must  be  left  to  de- 
cide the  matter  according  to  what  he  might  conjecture  was  the  in- 
tention of  the  party  or  parties.  It  could,  at  most,  be  only  conjecture, 
for  he  must  necessarily  decide  without  evidence,  as  he  has  no  means 
of  obtaining  it ;  which  would  be  productive  of  confusion  and  uncer- 
tainty. The  same  conveyance,  for  instance,  includes  several  tracts 
of  land,  lying  in  different  counties  of  this  state,  and  the  grantee,  for 
his  greater  security,  has  it  recorded  in  each  of  the  several  counties ; 
but  the  recorders  entertaining  different  opinions  in  regard  to  its  being 
a  sealed  instrument  or  not,  some  of  them  record  it  with  a  seal,  and 
others  record  it  without  a  seal.  By  some  means  the  original  happens 
to  be  lost,  in  which  case  the  record  must  be  resorted  to,  as  the  only 
existing  evidence ;  but  upon  recourse  being  had  to  it,  and  it  appear- 
ing to  be  without  a  seal  of  the  grantor  affixed  to  it,  a  grave  question 
then  arises,  whether  any  title  in  the  land  has  been  transferred  by 
it,  inasmuch  as  it  is  not  a  deed  ?  Again,  an  exemplification  of  it, 
with  a  seal  affixed  to  the  name  of  the  grantor,  is  produced  from  an- 
other county,  which  by  our  recording  acts  is  made  evidence  of  as 
high  a  nature  as  the  original  itself ;  which  presents  another  question 
between  these  conflicting  records,  Which  of  them  shall  prevail  ? 
And  in  the  last  place,  I  would  ask,  how  the  rule  that  is  contended 
for  here,  that  a  jury  shall  decide  whether  a  seal  has  been  affixed  or 
not,  can  be  carried  into  effect,  when  an  exemplification  only  is  pro- 
duced, and  which  will  be  produced  in  all  cases  where  it  is  conceived 
that  it  will  answer  the  purpose  of  the  party  better  than  the  original, 


May  1833.]  OF  PENNSYLVANIA.  327 

[Duncan  v.  Duncan.] 

because,  by  the  express  terms  of  the  recording1  act  of  1715,  it  is  made 
equally  good  and  available  evidence  as  the  original  1  It  is  easy  to 
perceive  that  without  the  production  of  the  original,  it  would  be 
utterly  impracticable  in  many  cases  to  have  the  question  of  seal  or 
no  seal  decided  by  the  jury.  Hence,  confusion,  uncertainty  and  im- 
practicability would  all  seem  to  be  the  consequences  of  attempting 
to  carry  such  a  principle  into  operation.  Happily,  however,  the  law 
is  well  settled  otherwise.  It  has  defined  precisely  what  the  seal  of 
a  party  to  a  deed  shall  be  or  consist  of. 

An  impression  upon  wax  or  something  of  the  kind,  or  the  wax 
itself,  was  the  only  kind  of  seal  known  to  the  common  law  of  that 
country,  whence  we  have  derived  our  common  law.  2  Bl.  Com. 
309,  310.  In  addition  to  this,  we  have,  by  immemorial  use  and  cus- 
tom, adopted  as  a  seal  a  scroll  made  with  ink.  It  is  in  such  general 
use  that  there  are  but  few,  I  think,  who  are  not  intimately  acquainted 
with  its  character  and  appearance,  and  therefore  well  suited  to  be- 
come part  of  our  law  on  this  subject;  and  to  support  the  decisions 
recognizing  it  as  such  in  M'Ditt  and  Lee  v.  M'Dill,  1  Doll.  63, 
and  Long  v.  Ramsay,  1  Serg.  fy  Rawle  72.  In  using  even  a 
scroll  for  a  seal,  it  would  seem  to  be  proper,  or  at  least  prudent, 
not  to  depart  from  the  common  form  which  is  generally  used  in 
making  it,  so  that  no  possible  doubt  may  be  raised  of  its  having 
been  intended  for  a  seal ;  for,  according  to  the  principles  laid  down 
in  Taylor  v.  Glaser,  2  Serg.  fy  Rawle  502,  unless  a  seal,  such  as  is 
known  to  and  recognized  by  the  law,  be  affixed  to  the  name  of  the 
party,  it  will  not  be  considered  a  deed,  although  some  other  device 
may  be  substituted  for  a  seal,  and  the  words  "  in  witness  whereof  I 
have  hereunto  set  my  hand  and  affixed  my  seal,"  may  be  used  in  the 
attestation.  It  is  said  by  the  late  Chief  Justice,  in  that  case,  that 
without  the  seal,  these  words  will  not  make  a  deed,  though  the  seal 
will  make  it  such  without  the  words;  which  goes  to  show  the  import- 
ance and  necessity  of  the  seal  being  something  that  is  known  to 
every  one  to  be  used  for  that  purpose.  In  Virginia  it  was  thought  that 
the  common  law  had  defined  what  should  be  a  seal  with  so  much 
precision  and  certainty,  that  the  legislature  deemed  it  necessary  to 
pass  a  statute  to  authorize  a  scroll  to  be  used  for  that  purpose.  See 
2  Tuck.  BL  306,  in  note. 

We  are  therefore  decidedly  of  opinion  that  it  belonged  to  the  court 
to  determine  in  this  case,  by  an  inspection  of  the  certificates  of  ac- 
knowledgement, whether  they  were  given  under  the  seals  of  the 
respective  officers  or  not,  and  that  it  was  correct  in  deciding  that 
they  were  not  under  seal. 

I  come  now  to  the  consideration  of  the  next  question  :  which  is, 
Was  it  necessary  that  the  certificates  should  have  been  given  under 
seal,  in  order  to  make  the  conveyance  admissible  in  evidence,  accord- 
ing to  the  provisions  of  our  acts  of  assembly  on  this  subject  ? 

The  first  act,  and  the  only  one  which  directs  the  manner  in  which 
the  acknowledgements  or  probates  of  deeds  and  conveyances  shall 


328  SUPREME  COURT  [Lancaster, 

[Duncan  v.  Duncan.] 

be  certified,  was  passed  on  the  28th  of  May  1715,  and  is  entitled 
"  an  act  for  acknowledging  and  recording  of  deeds."  This  act,  after 
empowering  justices  of  the  peace  of  the  proper  county  or  city  where 
the  lands  lie  to  take  the  acknowledgement  of  the  grantor  named  in 
the  deed  and  conveyance,  or  in  case  he  be  dead  or  can  not  appear, 
then  to  receive  proof  of  the  execution  thereof  from  two  or  more  of  the 
witnesses  who  were  present  at  the  time,  directs  in  the  third  section 
thereof,  that  the  justice  taking  the  acknowledgement  on  proof  shall 
thereupon  "  under  his  hand  and  seal  certify  such  acknowledgement 
on  proof,  &c.,"  which  after  being  done,  the  deed  may,  according  to 
other  provisions  of  the  act,  be  enrolled  in  the  recorder's  office  of  the 
county  where  the  lands  lie  :  and  this  being  done,  it  is  enacted  by  the 
fifth  section,  that  "  the  copies  or  exemplifications  of  all  deeds  so  enroll- 
ed, being  examined  by  the  recorder  and  certified  under  the  seal  of  the 
proper  officer  (which  the  recorder  or  keeper  thereof  is  thereby  required 
to  affix  thereto),  shall  be  allowed  in  all  courts  where  produced,  and 
are  thereby  declared  and  enacted  to  be  as  good  evidence,  and  as 
valid  and  effectual  in  law  as  the  original  deeds  themselves,  or  as 
bargains  and  sales  enrolled  in  the  said  courts  of  Westminster  Hall 
(which  courts  are  mentioned  in  a  preceding  part  of  the  section  for 
another  purpose),  and  copies  thereof  can  be,  and  the  same  may  be 
showed,  pleaded,  and  made  use  of  accordingly."  This  act  has  ever 
been  considered  as  authorizing,  by  necessary  implication,  the  original 
deed,  after  it  has  been  acknowledged  or  proved  in  conformity  to  its  di- 
rections, to  be  given  in  evidence  on  the  trial  of  a  cause  where  it  may 
be  relevant,  without  other  proof  being  offered  of  its  execution  ;  and  it 
has  been  adjudged  admissible  without  being  recorded.  J\f* Dell  and 
Lee  v.  J\t  'Dell,  1  Doll.  63,  and  Hamilton  and  Lee  v.  Gallaway,  Ibid.  93. 

From  the  express  terms  of  this  act,  the  certificate  of  the  acknow- 
ledgement or  probate  must  be  under  the  hand  and  seal  of  the  justice. 
At  common  law  such  acknowledgement  or  probate  would  not  have 
entitled  the  deed  to  be  given  in  evidence,  and  it  is  only  by  means  of 
this  statute  that  it  becomes  admissible;  which  renders  it  indispensably 
necessary  that  the  requirements  of  it  should  be  fully  observed  and 
complied  with,  otherwise  the  deed  can  only  be  admitted  after  evi- 
dence has  been  given  of  its  execution,  according  to  the  rules  of  the 
common  law. 

By  the  act  of  the  24th  of  February  1770,  entitled  "  an  act  for  the 
better  confirmation  of  the  estates  of  persons  holding  or  claiming  un- 
der femes  covert,  and  for  establishing  a  mode  by  which  husband  and 
wife  might  thereafter  convey  their  estates"  (Purdon's  Dig.  196), 
the  judges  of  the  supreme  court  or  any  justice  of  the  county 
court  of  common  pleas  of  the  county  where  the  lands  lie,  are  au- 
thorized to  take  the  acknowledgement  of  deeds  conveying  lands 
by  husband  and  wife,  and  to  certify  the  same.  Again,  by  the 
act  of  the  18th  of  March  1775,  entitled  "a  supplement  to  the 
first  act"  (Purdon's  Dig.  198),  power  is  given  to  the  judges  of 
the  supreme  court  and  the  justices  of  the  common  pleas  of  the 


May  1833.]  OF  PENNSYLVANIA.  329 

[Duncan  v.  Duncan.] 

county  where  the  lands  lie  to  take  the  acknowledgement  of  all  deeds 
and  conveyances,  or  proof  by  one  or  more  of  the  subscribing  witnesses 
to  them.  So  other  acts  since  these  have  been  passed,  which  are 
still  in  force,  extending  this  power  to  other  officers  therein  named  ; 
among  which  is  one  passed  the  18th  of  March  1814,  giving  aldermen 
and  justices  of  the  peace  of  this  commonwealth  power  to  take  the 
acknowledgement  or  proof  of  all  deeds,  conveyances,  mortgages  or 
other  instruments  of  writing  touching  or  concerning  lands,  tenements 
or  hereditaments  lying  in  any  part  of  the  state ;  giving  to  them  the 
same  power  in  this  respect  that  had  been  previously  given  to  the 
judges  of  the  supreme  court.  But  in  all  the  acts  passed  on  this  sub- 
ject since  the  first  act  of  1715,  not  a  word  is  to  be  found  directing 
or  pointing  out  the  manner  in  which  the  acknowledgements  and 
probates  so  authorized  to  be  taken  shall  be  certified.  Neither  is 
there  any  thing  tending  in  the  least  to  show  that  the  legislature,  by 
any  of  these  subsequent  acts,  intended  or  ever  thought  of  dispensing 
with  the  seal  of  the  officer  that  is  expressly  required  by  the  terms  of 
the  first  act  to  be  affixed  by  him  to  his  certificate  of  the  acknowledge- 
ment or  probate.  These  acts  are  all  in  pari  materia,  and  must  be 
construed  as  one  act ;  the  direction  therefore  contained  in  the  first, 
that  the  certificate  of  the  officer  shall  be  under  his  hand  and  seal, 
must  be  considered  as  running  throughout  the  whole,  and  prescribing 
the  same  mode  for  certifying  acknowledgements  or  probates  taken 
within  the  state  by  any  of  the  officers  to  whom  such  authority  has 
been  given  by  these  acts  of  assembly.  I  am  aware  that  there  is  a 
very  short  note  of  a  case,  Whltmire  v.  Napier,  4  Serg.  fy  Rawle  290, 
which  seems  to  militate  against  this  construction.  It  does  not  ap- 
pear, however,  that  the  point  was  argued,  nor  how  the  court  came 
to  the  conclusion  that  is  there  mentioned ;  and  I  am  strongly  in- 
clined to  believe  that  it  was  done  without  argument,  and  without 
a  full  examination  of  all  the  acts  of  assembly  on  the  subject :  by 
them  we  are  bound,  and  must  make  our  decision  accordingly  ;  and 
after  a  careful  examination  of  them  all,  I  am  convinced,  beyond  the 
shadow  of  a  doubt,  that  whether  the  acknowledgement  or  probate 
be  made  before  a  judge  of  the  supreme  court,  president  or  assistant 
judge  of  the  common  pleas,  alderman  or  justice  of  the  peace,  within 
this  state,  it  must  be  certified  under  his  hand  and  seal,  otherwise  the 
deed  or  instrument  can  not  be  admitted  in  evidence,  without  other 
proof  of  its  execution. 
The  decision  of  the  circuit  court  is  affirmed. 


330  SUPREME  COURT  [Lancaster, 


Mercer  against  Watson. 

A  husband  and  wife  conveyed  tho  estate  of  the  wife  by  a  deed  defectively  acknow- 
ledged, and  after  the  death  of  the  wife,  the  heirs  at  law  brought  an  ejectment  and 
recovered  the  land,  and  remained  in  possession  of  it  for  seventeen  years,  and  until 
aft  IT  the  passage  of  the  act  of  assembly,  entitled  "  an  act  for  the  better  confirmation 
of  the  estates  ot  persons  holding  or  claiming  under  femes  covert,  and  for  establishing 
a  mode  in  which  husband  and  wife  may  hereafter  convey  their  estates."  It  was 
held  :  that  this  act  cured  the  defect  in  the  acknowledgement,  so  as  to  enable  those 
who  claimed  under  the  deed,  to  bring  an  action  of  ejectment  and  recover  back  the 
land. 

Nothing  short  of  an  actual,  continued,  visible,  notorious,  distinct  and  hostile  pos- 
session ofland  for  twenty-one  years,  will  enable  a  defendant  to  avail  himself  of  the 
statute  of  limitations.  And  if  his  possession  be  obtained  by  virtue  of  a  writ  of  hater e 
facias  possessioncm,  the  twenty-one  years  will  commence  to  run  from  the  execution 
of  that  writ,  and  not  from  the  date  of  the  demise  laid  in  the  declaration  in  the  action 
wherein  that  issued. 

An  action  of  ejectment  was  brought,  and  a  verdict  and  judgment  for  the  plaintiff; 
an  ejectment  was  then  brought  by  the  defendant  in  the  first  action,  and  a  verdict  and 
judgment  for  him,  which  was  reversed  by  the  supreme  court ;  in  another  ejectment  by 
the  plaintiff  in  the  second,  it  was  held,  that  the  verdict  and  judgment  in  the  first, 
and  reversal  of  the  judgment  in  the  second,  were  not  a  bar  to  the  third  ejectment. 

An  ejectment  was  brought  against  several  defendants,  some  of  whom  were  minors 
at  the  institution  of  the  suit,  but  before  the  return  day  of  the  writ,  a  guardian  was 
appointed  for  them,  who  employed  counsel  to  defend,  and  who  did  defend.  Held, 
that  a  verdict  and  judgment  against  all  the  defendants  was  good. 

APPEAL  from  the  circuit  court  of  Lancaster  county,  held  by 
Chief  Justice  Gibson. 

This  was  an  action  of  ejectment  for  two  tracts  of  land,  by  John 
Mercer,  surviving  executor  of  James  Mercer  deceased  :  against  Jane 
Watson ;  David  Watson  and  Esther  Watson,  Jinn  Watson,  Samuel  P. 
Watson  and  Jane  J.  Watson,  by  their  guardian  Jane  Watson.  Both 
parties  claimed  title  under  Samuel  Patterson  deceased,  who  died 
intestate,  leaving  issue  five  children,  John,  Margaret,  Samuel,  Joseph 
and  Sarah.  In  1784,  by  proceedings  in  partition,  the  land  was  con- 
firmed to  James  Mercer  and  Margaret  his  wife,  in  right  of  the  said 
Margaret,  who  was  one  of  the  heirs  of  Samuel  Patterson  deceased. 
On  the  30th  of  May  1785,  James  Mercer  and  Margaret  his  wife  con- 
veyed to  Nathan  Thompson,  who,  by  deed  of  the  same  date,  recon- 
veyed  to  James  Mercer.  The  will  of  James  Mercer,  proved  the  10th 
of  December  1804,  vested  his  title  in  the  plaintiff,  John  Mercery  his 
executor. 

Sarah  Patterson,  one  of  the  daughters  of  Samuel  Patterson,  de- 
ceased, was  married  to  David  Watson,  and  died,  leaving  issue  one 
son,  Samuel  Watson,  who  also  died,  leaving  the  defendants,  his 
widow  and  children.  The  defendants  gave  in  evidence,  the  record 
of  an  action  of  ejectment  for  the  land  in  dispute,  brought  to  Febru- 
ary term  1802,  by  the  lessee  of  David  Watson  and  wife,  against 


May  1833.]  OF  PENNSYLVANIA.  331 

[Morcer  v.  Watson.] 

James  Mercer,  demise  laid  on  the  1st  of  February  1802,  ouster  the 
same  day,  which  abated  by  the  death  of  James  Mercer  in  1804. 
Another  ejectment  for  the  same  land  to  February  term  1805,  by  the 
same  plaintiff,  against  the  same  defendant ;  demise  laid  in  1804, 
verdict  and  judgment  for  the  plaintiff,  removed  to  the  supreme  court, 
and  the  judgment  affirmed  in  1808.  Ejectment  to  January  term 
1818,  by  John  and  Margaret  Mercer  against  Samuel  P.  Watson,  for 
the  same  land,  and  the  respective  parties  claimed  under  the  same 
title  as  the  parties  in  the  former  ejectment ;  verdict  and  judgment 
for  the  plaintiffs,  removed  by  writ  of  error  to  the  supreme  court,  and 
the  judgment  reversed.  Also,  to  August  term  1809,  record  of  anaction 
for  mesne  profits,  by  Watson  and  wife  against  Bailey  and  others ; 
verdict  and  judgment  in  1813,  for  1200  dollars  damages. 

Upon  the  judgment  in  ejectment,  by  Watson  and  wife  against 
Mercer,  brought  to  February  term  1805,  an  habere  facias  possessionem 
issued  to  March  term  1809,  and  the  plaintiffs  were  then  put  into 
possession. 

The  present  action  of  ejectment  was  brought  to  June  term  1829, 
the  prttcipe  dated  the  6th  of  May  1829.  All  these  ejectments  arose 
out  of  the  defective  acknowledgement  by  the  wife,  of  the  deed  from 
James  Mercer  and  Margaret  his  wife,  to  Nathan  Thompson.  And 
this  ejectment  was  brought  in  consequence  of  the  passage  of  the  act 
of  the  3d  of  April  1826,  confirming  deeds  by  femes  covert. 

After  the  testimony  was  closed,  the  counsel  for  the  defendants 
prayed  the  court  to  charge  the  jury  on  the  following  points  of  law, 
and  to  file  their  charge  of  record. 

1.  That  on  the  death  of  Margaret  Mercer,  the  wife  of  James 
Mercer,  seised  in  fee  of  the  lands  in  dispute  in  this  cause,  intestate, 
her  husband,  continuing  to  hold  and  possess  them  after  her  death 
and  claiming  to  devise  them  as  his  own,  was  a  tenant  at  sufferance, 
and  his  continuing  in  possession  of  them  was  not  adverse  or  hostile 
to  the  true  owners  or  the  heirs  at  law  of  his  wife. 

2.  That  upon  the  death  of  Margaret  Mercer,  intestate  and  without 
issue,  and  the  ejectment  sued  on  the  4th  day  of  February  1802,  by 
her  sister,  Sarah  Watson,  her  sole  heir  at  law,  and  David  Watson, 
her  husband,  against  James  Mercer,  for  the  recovery  of  the  real  estate, 
of  which  the  said  Margaret  Mercer  died  seised  in  fee,  and  which  the 
said  James  held  and  withheld  from  her  heir  at  law  the  said  Sarah, 
the  said  James  Mercer  became  a  tort  feasor  and  trespasser  from  the 
time  he  withheld  the  said  fee  simple  estate  from  the  said  Sarah  and 
her  husband,  and  became  responsible  to  them  for  damages  for  so 
withholding  the  said  estate  from  the  said  David  Watson  and  wife,  in 
the  right  of  the  said  Sarah,  from  the  death  of  the  said  Margaret 
Mercer,  and  the  descent  cast,  unless  the  plaintiff  can  show  other  title 
for  so  withholding  and  retaining  the  said  possession,  than  that  of  the 
deeds  of  30th  of  May  1785,  by  James  Mercer  and  Margaret  his  wife 
to  Nathan  Thompson,  and  from  said  Thompson  to  James  Mercer,  given 
in  evidence  in  this  cause. 


332  SUPREME  COURT  [Lancaster, 

[Mercer  v.  Watson.] 

3.  That  the  alleged  deed  of  30th  of  May  1785,  executed  by  Tames 
Mercer  and  Margaret  his  wife  to  Nathan  Thompson,  not  being  exe- 
cuted and  acknowledged  conformably  to  the  act  of  assembly,  passed 
the  24th  of  February  1770,  "  establishing  a  mode  by  which  husband 
and  wife  may  hereafter  convey  the  estate  of  the  wife,"  was,  at  the 
time  of  its  execution  and  acknowledgement,  no  deed  in  law,  but  an 
absolute  nullity,  so  far  as  it  pretended  to  convey,  or  in  any  way  affect 
the  real  estate  of  the  said  Margaret  contained  in  it. 

4.  That  as  John  Mercer,  the  present  plaintiff,  and  the  other  defendants 
in  the  ejectment  sued  against  them  on  the  4th  of  February  1805,  in  the 
common  pleas  of  Lancaster  county,  for  the  recovery  of  the  lands  now 
in  dispute  in  this  ejectment,  by  David  Watson  and  Sarah  his  wife, 
gave  in  evidence  the  deed  of  the  30th  of  May  1785,  given  in  evi- 
dence in  this  cause,  and  insisted  on  it  on  the  trial  and  appeal  taken 
in  that  cause  to  be  a  bar  to  the  said  ejectment,  by  vesting  the  estate 
in  Nathan  Thompson,  which  his  conveyance,  given  in  evidence, 
vested  in  James  Mercer,  and  tolled  and  defeated  the  descent  of  the 
said  estate  to  Sarah  Watson,  on  which  points  so  raised  and  filed  of 
record  by  the  defendants,  the  supreme  court,  on  the  31st  of  Decem- 
ber 1808,  decided,  that  the  said  deeds  did  not  bar  the  said  ejectment, 
and  that  the  plaintiffs,  as  heirs  at  law,  do  recover  the  real  estate  of 
the  said  Margaret  from  the  said  defendants,  which  judgment  given 
in  evidence  in  this  cause,  is  conclusive  evidence  that  the  said  deed  of 
the  30th  of  May  1785,  was  absolutely  void,  as  the  deed  of  the  said 
Margaret  Mercer,  to  convey  her  estate,  or  to  prevent  the  descent 
thereof  to  her  heir  at  law,  the  said  Sarah  Watson. 

5.  That  it  appears  from  the   record  given  in  evidence  in  this 
cause,  that  the  lessee  of  David  Watson  and  Sarah  his  wife,  after  the 
recovery  stated  in  the  fourth  point  above,  on  the        day  of 

1809,  brought  an  action  of  trespass  for  the  mesne  profits  against  the 
said  John  Mercer  the  present  plaintiff,  Francis  Bailey,  John  Messen- 
cope,  and  Joseph  Lefevre,  to  August  term  1809,  No.  1,  in  the  com- 
mon pleas  of  Lancaster  county,  in  which  they  recovered  by  a  verdict 
of  a  jury,  and  the  judgment  of  the  court,  1200  dollars,  showing  that 
their  possession  of  the  lands  so  recovered,  and  the  profits  received 
was  wrongful,  and  themselves  trespassers  in  occupying  the  lands  so 
recovered  under  the  deed  and  will  shown  in  evidence  in  this  cause 
by  the  plaintiff. 

6.  That  the  said  Sarah  Watson  died  intestate,  and  her  real  estate, 
the  lands  now  in  dispute,  descended  to  Samuel  P.  Watson,  her  only 
child  and  heir  at  Jaw,  before  the  2d  of  December  1817,  against  whom 
John  Mercer  and  Margaret  Mercer  brought  an  ejectment  to  January 
term  1818,  No.  54,  in  the  common  pleas  of  Lancaster  county,  for  the 
lands  now  in  dispute,  which  being  put  to  issue,  came  to  trial,  when 
the  plaintiffs  gave  in  evidence  the  deed  of  30th  of  May  1785,  to  sup- 
port the  said  ejectment,  when  the  defendant  requested  the  court  to 
give  it  in  charge  to  the  jury,  "that  the  deed  of  30th  of  May  1785, 
from  James  Mercer  and  Margaret  his  wife,  to  Nathan  Thompson, 


May  1833.]  OF  PENNSYLVANIA.  333 

[Mercer  v.  Watson.] 

prout  said  deed  given  in  evidence  by  plaintiff  to  sustain  his  said  suit, 
is  not  duly  acknowledged  to  convey  the  estate  of  inheritance  of  Mar- 
garet Mercer  so  as  to  destroy  the  descent  of  the  estate  to  the  de- 
fendant her  heir  at  law."  Whereupon  the  court  charged  the  jury  that 
the  said  deed  so  acknowledged  was  sufficient  to  convey  the  said  in- 
heritance, and  bar  the  descent  thereof  to  the  defendant  as  the  heir 
of  the  said  Margaret,  on  which  charge  a  verdict  and  judgment  being 
rendered  in  favour  of  the  plaintiff,  and  a  writ  of  error  prosecuted  by 
the  defendant  Samuel  Watson,  to  the  supreme  court  to  May  term, 

1819,  and  on  argument,  "the  said  court  reversed  the  judgment 
of  the  court  of  common  pleas  in  this  action."     The  said  judgment 
of  the  supreme  court  being  given  on  the  very  deed  of  30th  of  May 
1785,  was  conclusive  evidence  that  the  said  deed  was  inoperative 
and  void  to  convey  the  estate  of  the  said  Margaret  Mercer,  and  that 
the  descents  of  the  estate  of  the  said  Margaret  Mercer,  on  her  death, 
to  her  sister  Sarah  Watson,  and  on  her  death  to  her  son  Samuel  P. 
Watson,  were  valid  and  legal. 

7.  That  the  two  judgments  of  the  supreme  court,  given  in  evidence 
in  this  cause  on  the  31st  of  December  1808,  and  on  the  3d  of  June 

1820,  on  the  very  point  of  the  deed  of  the  30th  of  May  1785,  being 
by  each  of  the  records  specifically  presented  to  the  said  court  for  their 
judgment,  and  that  the  said  judgments  having  not  only  decided  that 
the  said  deed  was  inoperative  and  void  to  show  title  in  the  defend- 
ants in  the  first  and  the  plaintiffs  in  the  second  ejectment,  and  in  no 
way  impeded  the  descent,  under  the  intestate  laws,  of  the  estate  of 
Margaret  Mercer  to  her  heir  at  law,  but  that  the  said  heir  was  en- 
titled to  recover  thereby,  the  said  two  judgments  are  conclusive  evi- 
dence that  the  said  deed  of  the  30th  of  May  1785,  so  far  as  the  same 
related  to  the  said  Margaret  Mercer,  was  null  and  void,  and  never 
after  could  become  a  legal  instrument,  after  her  death,  and  the  treble 
descent,  to  Sarah  Watson,  and  from  her  son  Samuel  P-  Watson,  and 
from  Samuel  P.  Watson  to  his  children,  under  the  said  judgment  and 
the  intestate  laws  before  the  3d  of  April  1826. 

8.  Whether,  under  the  two  judgments  in  the  two  ejectments,  John 
and  Margaret  Mercer  becoming  voluntarily  nonsuit  in  the  ejectment 
to  January  term  1818,  No.  55,  on  the  12th  of  March  1821,  did  not 
amount  to  an  acquiescence  in  the  previous  judgment,  a  voluntary 
submission  to  them  and  an  equitable  and  legal  relinquishment  of  the 
claim  to  the  lands  in  dispute;  and  whether  under  the  evidence  given 
of  the  ejectment  in  1802,  and  its  result,  and  of  the  ejectments  in 
which  the  two  judgments  were  rendered  against  the  deed  of  the  30th 
of  May  1785,  and  in  favour  of  the  heir  and  the  three  descents  cast 
before  the  3d  of  April  1826,  and  the  above  nonsuit,  when  they  had 
the  power  to  try  and  would  not,  be  cause  for  a  perpetual  injunction 
in  chancery  against  further  proceeding  upon  said  deed,  and  whether 
the  same  would  not  a  fortiori  be  a  bar  under  the  statute  of  the  13th 
of  April  1807,  the  said  records  showing  that  the  specific  mode  in 
which  they  were  presented  to  the  supreme  court  was  a  demurrer  to 


334  SUPREME  COURT  [Lancaster, 

[Mercer  v.  Wataon.] 

all  intents  and  purposes  and  equivalent  thereto,  taken  on  the  deed  of 
the  30th  of  May  1785,  in  Pennsylvania,  and  if  not,  please  to  state  the 
operation  of  these  records  and  judgments  and  nonsuit  and  three  de- 
scents, in  equity  and  law  in  this  cause. 

9.  That  this  cause  is  barred  hy  the  statute  of  limitations,  by  the 
suit  brought  on  the  4th  of  February  1802,  by  the  suit  brought  on  the 
4th  of  February  1805,  and  the  proceedings  and  judgment  rendered 
therein,  and  the  habere  facias  possessionem  and  fi.  fi.  issued  and  exe- 
cured  thereupon ;  also,  by  the  action  of  trespass  for  mesne  profits  and 
the  recovery  therein,  prout  said  records  respectively  given  in  evidence 
in  this  cause  and  peaceable  possession  and  quiet  and  undisturbed 
enjoyment  of  the  lands  for  which  this  suit  is  brought,  until  it  was 
brought  on  the  6th  of  May  1829 ;  the  recovery  of  the  31st  of  Decem- 
ber 1808,  and  its  execution,  extinguishing  the  tortious  possession 
from  the  death  of  Margaret  Mercer  and  the  action  of  trespass  com- 
pensating for  the  lawless  intrusion,  prout  the  record  thereof,  making 
the  possession  continuous  and  co-extensive  with  the  title,  under  the 
descents  and  the  adjudications  given  in  evidence. 

10.  That  the  act  of  assembly  of  the  3d  of  April  1826,  read  and 
relied  on  by  plaintiff  according  to  its  just  and  true  construction,  was 
designed  for  the  protection  of  purchases  made  bona  fide  and  for  full 
value,  only,  and  not  to  interfere  in  favour  of  volunteers,  to  subvert 
rights  previously  acquired  by  three  descents  and  corroborated  by  the 
strongest  equities  and  the  highest  legal  decisions. 

11.  That  if  the  said  act  of  2d  of  April  1826,  entitled  a  supplement 
to  an  act  for  the  better  confirmation  of  the  estates  of  persons  holding 
and  claiming  under  femes  covert,  and  for  establishing  a  mode  in 
which  husband  and  wife  may  hereafter  convey  their  estates,  so  far 
as  the  same  operates  upon  the  right  and  title  acquired  by  the  defend- 
ant's ancestors,  by  the  decision  of  the  supreme  court,  on  the  31st  of 
December  1808,  in  the  suit  then  pending,  and  given  in  evidence  in  this 
cause;  and  again,  in  their  decision  on  the  3d  of  June  1820,  in  the 
suit  given  in  evidence  in  this  cause ;  and  also  by  the  nonsuit  given  in 
evidence  in  another  ejectment,  given  in  evidence  ;  and  also  by  the 
ejectment  brought  on  the  4th  of  February  1802,  and  given  in  evi- 
dence in  this  cause  ;  and  also  by  the  three  descents  proved  and  given 
in  evidence  in  this  cause,  is,  if  the  said  act  was  intended  to  operate  on 
such  rights  so  validated,  descended  and  confirmed,  unconstitutional 
and  void. 

12.  What  is  the  operation  of  the  act  of  the  3d  of  April  1826,  upon 
the  land  sold  and  shown  by  the  deeds  given  in  evidence  in  this 
cause,  if  the  same  is  holden  to  have  a  retrospection  in  giving  effi- 
cacy to  the  deed  of  the  30th  of  May  1785,  given  in  evidence  in  this 
cause  ? 

Whereupon  the  court  charged  the  jury  as  follows,  viz. — 
Samuel  Patterson  owned  the  land  in  1785,  when  he  died.     He 
left  three  sons  and  two  daughters.     The  sons  died  without  chil- 
dren, so  that  the  whole  estate  came  to  the  two  daughters.     Sarah 


May  1833.]  OF  PENNSYLVANIA.  335 

[Mercer  v.  Watson] 

married  David  Watson  and  Margaret  married  James  Mercer.  In 
1785  Margaret,  intending  to  give  her  land  to  her  husband,  joined 
with  him  in  a  conveyance  to  Nathan  Thompson,  who  conveyed  back 
to  James  Mercer.  James  Mercer  and  Margaret  his  wife  had  no  chil- 
dren, and  on  her  death,  if  the  estate  had  continued  to  belong  to  her, 
it  would  have  gone  to  the  defendants,  who  are  the  children  of  her 
sister  Sarah,  and  her  heirs  at  law.  The  defendants,  therefore,  con- 
tend, that  the  conveyance  to  Nathan  Thompson  was  void,  for  a  defect 
in  the  certificate  of  acknowledgement.  That  has  been  decided 
against  the  defendants  by  the  supreme  court ;  and  this  court  and  you 
are  bound  by  the  decision.  It  has  been  determined  by  the  supreme 
court,  that  the  act  of  assembly  of  1826  cured  the  original  defect. 
This  can  be  overruled  only  by  the  supreme  court  of  the  United  States. 
They  can  succeed,  therefore,  only  by  some  other  title.  They  claim 
a  title  by  the  statute  of  limitations.  They  claim  to  have  been  in  the 
adverse  possession  of  the  premises  from  the  death  of  James  Mercer, 
in  1804,  on  the  ground  that  the  possession  of  the  plaintiff,  his  execu- 
tor, was  their  possession.  If  the  deed  from  Mercer  and  wife  to 
Thompson,  and  his  conveyance  to  Mercer  the  husband,  was  good, 
and  passed  the  estate  to  James  Mercer  (and  the  defendants  stand  in 
no  need  of  the  statute  of  limitations  if  they  did  not)  this  is  strange  doc- 
trine. But  even  if  these  deeds  were  a  nullity,  yet  the  possession  of 
the  executors  of  James  Mercer  after  the  expiration  of  the  estate  of 
his  wife,  would  not  be  under  the  defendants,  but  adverse  to  them. 
The  possession  of  the  executors  contained  no  recognition  of  the  de- 
fendant's title,  but  was  inconsistent  with  it.  But  it  is  said,  that  the 
statute  never  was  intended  to  validate  the  deed  after  the  statute  had 
run.  The  statute,  however,  could  not  run,  if  the  possession  of  the 
executors,  after  the  death  of  James  Mercer,  were  not  the  possession  of 
the  defendants.  It  seems  to  me,  that  the  possession  of  the  executors 
was  adverse,  because  they  denied  the  title  of  Sarah  Watson  or  her 
children.  They  held  the  land  in  trust  for  the  uses  declared  in  the 
will ;  that  is,  to  sell  it,  and  divide  the  price  among  James  Mercer's 
devisees.  This  is  a  fact  for  you.  But  the  intent  of  the  statute  was 
to  make  the  conveyance  good  by  relation  from  its  date.  It  could  be 
good  in  no  other  way ;  for  if  it  were,  the  estate  would  vest  for  the 
first  time  in  1826,  when  the  confirming  law  was  passed.  The  stat- 
ute of  limitations,  therefore,  will  not  avail  the  defendants. 

The  former  proceedings  have  been  relied  on  as  givingthe  defendants 
a  title ;  that  is,  the  verdict  obtained  by  them,  a  nonsuit  suffered  by 
the  plaintiff,  and  the  several  descents  that  have  taken  place  of  the 
property.  I  see  nothing  in  all  these  to  stand  in  the  way  of  the  plain- 
tiff's rights.  I  dissent  from  Mr  Hopkins's  points,  and  cannot  instruct 
you  according  to  his  request. 

The  jury  found  a  verdict  for  the  plaintiff,  with  six  cents  damages 
and  six  cents  costs. 

The  defendants  moved  the  court  for  a  new  trial  on  the  following 


336  SUPREME  COURT  [Lancaster, 

[Mercer  v.  Watson.] 

reasons  filed  ;  and  the  motion  being  overruled  by  the  court,  they  ap- 
pealed to  the  supreme  court  for  the  same  reasons,  viz. — 

1.  The  honourable  court  misdirected  the  jury  on  each  and  every 
of  the  points  propounded  to  him,  and  on  which  he  charged  the  jury. 

2.  The  cause  is  barred  by  the  statute  of  limitations. 

3.  This  cause,  under  the  evidence  given  in  it,  would  have  been  per- 
petually enjoined,  and  any  proceedings  upon  it  by  the  plaintiff;  and 
the  honourable  judge,  exercising  in  this  ejectment  all  the  powers  of 
chancery,  through  the  medium  of  the  jury,  ought  to  have  charged 
the  jury,  the  suit  was  on  equitable  grounds  barred  and  that  they 
ought  to  find  for  the  defendants. 

3.  This  cause  was  barred  under  the  act  of  1st  of  April  1807  ;  the 
question  propounded  to  the  court  of  common  pleas  to  charge  the  jury 
upon,  and  the  charge  upon  it,  and  the  verdict  and  judgment  rendered 
upon  it,  being  in  law  and  equity  equivalent  to,  and  the  same  as  a 
demurrer  ;  and  the  verdict  and  judgment  equivalent  to  a  special  ver- 
dict, and  the  same  as  a  special  verdict,  and  the  judgment  of  the 
supreme  court,  reversing  the  said  judgment,  on  the  3d  day  of  June 
1820,  and  awarding  no  venire  facias  de  novo. 

5.  The  two  judgments  rendered  by  the  supreme  court,  on  the  31st 
of  December  1808,  and  on  the  3d  of  June  1820,  conclusively  estab- 
lish, that  the  deed  of  30th  of  May  1785,  was  no  deed,  but  a  mere 
nullity,  which  never  afterwards  was  susceptible  of  confirmation  by 
any  act  of  the  legislature. 

6.  The  act  of  3d  of  April  1826,  was  never  intended  to,  nor  does  it 
in  expression,  operate  upon  this  cause  ;  and  if  it  did,  it  is  unconsti- 
tutional and  void. 

7.  The  defence  given  in  evidence  in  this  cause,  and  made  a  part 
of  the  record,  makes  a  case,  which  is  under  the  conclusive  protection 
of  the  constitution  of  the  state  of  Pennsylvania,  and  of  the  constitu- 
tion of  the  United  States,  and  placed  beyond  the  power  of  the  state 
legislature  ;  and  if  the  act  of  3d  of  April  1826,  was  in  intention  or 
expression  operative  on  this  defence  (which  we  deny)  the  said  act  is 
unconstitutional  and  void. 

8.  The  verdict  in  this  cause  is  illegal,  and  directly  contrary  to  the 
evidence  in  finding  for  the  whole  lands  in  the  statement,  except  that 
contained  in  the  parts  sold,  when  they  showed  title  to  part  only,  and 
in  not  finding  and  specifying  the  quantity  the  plaintiff  showed  he 
had  title  to  (supposing — though  not  admitting — for  the  sake  of  rais- 
ing the  objection),  by  the  evidence  he  gave. 

Montgomery  and  Hopkins,  for  appellants,  argued  that  the  act  of 
the  3d  of  April  1826,  was  confined  to  bona  fide  purchasers,  who,  at 
the  passage  of  the  act,  were  in  possession  of  estates  by  virtue  of  deeds 
defectively  acknowledged  by  femes  covert;  Tate  v.  Stooltzfoos,  16 
Serg.  <$•  Rawle  35 ;  and  any  other  construction  would  bring  it  into 
collision  with  the  tenth  section  of  the  first  article  of  the  constitution 
of  the  United  States  and  the  seventeenth  section  of  the  ninth  article 
of  the  constitution  of  Pennsylvania.  One  of  the  first  principles  of 


May  1833.]  OF  PENNSYLVANIA.  337 

[Mercer  v.  Watson.] 

legislation  is  that  all  laws  shall  commence  their  operations  infuturo ; 
and  every  construction  of  a  law,  which  gives  it  a  retrospective  effect 
is  contrary  to  the  plain  principles  of  enlightened  jurisprudence.  If 
this  act  had  been  passed  during  the  pendency  of  the  suit  in  1808, 
this  court  would  not  have  given  it  an  application  to  this  case,  much 
less  now,  since  the  whole  right  has  been  settled.  The  application 
of  it  now  is  to  determine  that  the  legislature  may  divest  a  right  sanc- 
tioned by  the  most  solemn  adjudication  of  our  courts.  In  this  same 
case,  reported  in  1  Binn.  470  and  6  Serg.  <$<•  Rawle  49,  the  doctrine  is 
held  that  the  acknowledgement  by  a  feme  covert  is  of  the  very  essence 
of  the  deed,  and  not  mere  evidence.  The  wife's  estate  never  was  di- 
vested ;  but  was  in  her  during  her  life,  and  as  certainly  in  her  heirs 
after  her  death  :  can  the  legislature  then,  when  twenty  years  have 
elapsed,  take  it  from  the  heirs  of  the  wife  and  give  it  to  the  heirs  or 
devisees  of  the  husband  1  Case  of  Dartmouth  College,  4  Wheat.  656 ; 
Fletcher  v.  Peck,  6  Crunch  87,  135,  136,  and  137. 

Rogers  and  Ellmaker,  for  appellees,  whom  the  court  declined  to 
hear. 

The  opinion  of  the  Court  was  delivered  by 

KENNEDY,  J. — The  counsel  for  the  appellants  in  this  case,  upon 
their  argument  of  it,  considered  all  the  reasons  assigned  for  taking 
the  appeal  as  presenting  three  questions. 

First.  Whether  the  act  of  the  general  assembly  of  this  common- 
wealth, passed  the  3d  of  April  1826,  entitled  "a  supplement  to  an 
act  entitled  an  act  for  the  better  confirmation  of  the  estates  of  persons 
holding  or  claiming  under  femes  covert  and  for  establishing  a  mode 
in  which  husband  and  wife  may  hereafter  convey  their  estates,"  was 
intended  to  be  applied  to  such  a  case  as  the  present ;  and  if  it  were, 
whether  in  this  application  it  is  not  unconstitutional  and  void  1 

Second.  Whether  the  plaintiff's  claim  is  not  barred  by  the  act 
of  limitations? 

And  third.  Whether  the  plaintiff's  claim  is  not  barred  by  the 
fourth  section  of  the  act  of  the  general  assembly,  passed  the  13th  of 
April  1807,  entitled  "a  supplement  to  an  act  to  regulate  arbitrations 
and  proceedings  in  courts  of  justice,"  passed  the  21st  of  March  1806, 
(Purd.  Dig.  228)  which  declares  that  "  where  two  verdicts  shah1  in 
any  writ  of  ejectment  between  the  same  parties  be  given  in  success- 
ion for  the  plaintiff  or  defendant  and  judgment  be  rendered  thereon, 
no  new  ejectment  shall  be  brought,  but  when  there  may  be  verdict 
against  verdict  between  the  same  parties,  and  judgment  thereon,  a 
third  ejectment  in  such  case  and  verdict  and  judgment  thereon  shall 
be  final  and  conclusive,  and  bar  the  right ;  and  the  plea  in  eject- 
ment shall  be  Not  guilty." 

As  the  first  question  was  decided  by  this  court  at  an  adjourned 
session  held  here  in  November  last  against  the  appellants  in  another 
action  of  ejectment  between  these  parties  for  the  same  land  upon  the 
2s 


338  SUPREME  COURT  [Lancaster, 

[Mercer  v.  Watoon.J 

same  title,  after  a  very  full  and  elaborate  argument  by  the  same 
counsel  that  appear  in  this  case  for  the  appellants,  it  was  therefore 
thought  unnecessary  to  argue  it  again.  The  decision  of  the  circuit 
court  upon  it  was  against  the  appellants  and  in  conformity  to  the 
decision  of  this  court  in  the  other  case  just  referred  to.  By  that  de- 
cision and  others  made  previously,  this  question  is  considered  as  set- 
tled by  this  court  against  the  appellants. 

I  will  now  proceed  to  consider  the  next  question,  in  regard  to  the 
statute  of  limitations  being  a  bar  to  the  plaintiff's  action.  By  the 
second  section  of  this  act  of  the  general  assembly  of  this  common- 
wealth, passed  the  26th  of  March  1785,  it  is  enacted,  that  "from 
henceforth  no  person  or  persons  whatsoever  shall  make  entry  into 
any  manors,  lands,  tenements  or  hereditaments,  after  the  expiration 
of  twenty-one  years  next  after  his,  her  or  their  right  or  title  to  the 
same  first  descended  or  accrued ;  nor  shall  any  person  or  persons 
whatsoever  have  or  maintain  any  writ  of  right,  or  any  other  real  or 
possessory  writ  or  action,  for  any  manors,  lands,  tenements  or  here- 
ditaments, of  the  seisin  or  possession  of  him,  her  or  themselves,  his, 
her  or  their  ancestors  or  predecessors,  than  within  twenty-one  years 
next  before  such  writ,  action  or  suit  so  hereafter  to  be  sued,  com- 
menced or  brought."  Now  it  is  certainly  true  that  according  to  the 
judicial  construction  put  upon  this  act,  the  possession  of  land  in  this 
state  by  a  person  for  the  space  of  twenty-one  years  may  give  him 
such  a  right  to  the  possession  of  it  as  will  not  only  enable  him  to  de- 
fend and  protect  his  possession  in  an  action  of  ejectment  brought 
against  him ;  but  in  case  of  his  being  ejected  by  force  or  even  under 
a  judgment  had  against  him  in  an  action  of  ejectment,  will  entitle 
him  to  maintain  an  ejectment  for  the  recovery  of  his  possession  of 
the  land  again.  Pedrick  v.  Searle,  5  Serg.  fy  Rawle  240.  But  the 
owner  of  the  land  can  only  be  barred  by  such  possession  where  it  has 
been  actual,  continued,  visible,  notorious,  distinct,  and  hostile  or  adverse 
for  the  space  of  twenty-one  years.  Hawk  v.  Senseman,  6  Serg.  fy 
Rawle  21.  And  it  is  not  necessary  that  the  party  claiming  a  right 
under  such  possession  should  have  entered  upon  the  land  under  a 
title  or  even  colour  of  title ;  it  will  be  sufficient,  although  he  were  a 
mere  trespasser.  Actual  possession  is  one  of  the  constituent  parts  of 
a  perfect  title  to  land,  and  may  exist  independent  of  the  right  in  one 
who  has  neither  the  right  of  possession  nor  the  right  of  property,  and 
therefore  may  be  transferred  by  him  who  has  it  to  another  who  takes 
it  after  him  and  continues  it,  so  that  if  the  possession  of  the  two 
added  together  will  amount  to  twenty-one  years  it  will  be  a  bar 
against  the  owner  if  it  has  been  adverse  to  him.  Overfield  v.  Christie, 
7  Serg.  $>  Rawle  177  ;  Miller  v.  Shaw,  7  Serg.  fy  Rawle  129;  Lenox 
v.  Farley,  8  Serg.  fy  Rawle  392  ;  Royer  v.  Benlow,  10  Serg.  fy  Rawle 
303 ;  Manshower  v.  Patton,  10  Serg.  fy  Rawle  334.  Neither  is  it  ne- 
cessary that  the  party  should  have  his  residence  on  the  land  to  make 
the  possession  of  it  adverse  and  complete  under  the  statute;  enclosing 


May  1833.]  OF  PENNSYLVANIA.  339 

[Mercer  v.  Watson.] 

and  cultivating  it  may  be  sufficient.  Johnson  v.  Irwin,  3  Serg.  <$• 
Rawle  291. 

Now  let  us  inquire  and  see  when  the  appellants  first  took  or  got 
the  actual  possession  of  the  land  in  dispute.  They  claim  title  to  it 
as  the  heirs  at  law  of  Margaret  Mercer  who  was  the  wife  of  James 
Mercer,  under  whom  the  plaintiff  claims.  At  the  time  Margaret 
Mercer  died,  which  was  about  the  beginning  of  the  year  1802,  James 
Mercer,  the  husband,  was  in  the  actual  possession  of  the  land,  and 
claimed  it  under  a  deed  dated  the  30th  day  of  May  1785,  conveying 
the  land  in  fee  to  him  from  Nathan  Thompson,  to  whom  James  Mer- 
cer arid  Margaret  his  wife,  by  their  deed  bearing  the  same  date,  had 
conveyed  it  in  fee.  This  last  deed  was  acknowledged  by  James 
Mercer  and  his  wife  before  a  proper  officer,  but  on  account  of  the 
certificate  given  by  him  of  the  acknowledgement  having  been  made 
before  him,  which  he  indorsed  upon  the  deed,  being  defective,  it  was 
adjudged  afterwards,  on  the  31st  of  December  1808,  by  this  court,  in 
an  action  of  ejectment  brought  by  the  appellants  against  the 
plaintiff,  who  claimed  under  the  will  of  James  Mercer,  that  it  was 
insufficient  to  pass  the  estate  of  Margaret  Mercer,  the  wife,  in  whose 
right  the  land  was  held  until  this  conveyance  was  made  by  them  to 
Thompson.  The  appellants,  after  having  obtained  a  judgment  in 
their  favour,  took  the  actual  possession  of  the  land,  which  was  de- 
livered to  them  under  a  writ  of  habere  facias  possessionem  sued  out 
to  March  term  1809.  The  action,  in  whicn  this  judgment  was 
given,  upon  which  they  obtained  possession,  was  commenced  the 
4th  of  February  1805,  and  the  demise  laid  to  have  commenced  on 
th  4th  of  December  1804.  Previously,  however,  to  this,  they  had 
brought  another  action  of  ejectment  to  February  term  1802,  laying 
their  demise  to  have  commenced  on  the  1st  of  February  in  that 
year,  against  James  Mercer,  who  was  then  living,  but  died  after- 
wards, in  the  latter  end  of  1804,  pending  the  action,  by  which  it 
abated. 

This  present  action  was  commenced  on  the  6th  of  May  1829. 

After  this  statement  of  facts,  it  appears  to  me  that  if  a  plain  unso- 
phisticated mind  were  asked  the  question,  At  what  time  did  the 
appellants  first  obtain  the  actual  possession  of  the  land  in  dispute  ? 
that  it  would,  without  hesitation,  say,  Not  until  the  spring  of  1809, 
when  it  was  delivered  to  them  under  the  writ  of  habere  facias  possess- 
ionem. Statutes  are  generally  to  be  understood  and  construed  ac- 
cording to  the  ordinary  meaning  and  common  acceptation  of  their 
terms.  Indeed  it  would  be  singularly  strange  and  unreasonable 
were  it  to  be  held  otherwise,  since  they  are  to  be  regarded  as  rules 
of  civil  conduct,  and  every  one  at  his  peril  is  bound  to  know  and  to 
understand  them.  But  it  has  been  argued  most  strenuously,  by  the 
counsel  for  the  appellants,  that  when  they  were  put  into  the  actual 
possession  of  the  land,  under  their  recovery  in  the  action  of  eject- 
ment, that  they  were  by  operation  of  law  remitted,  in  respect  to  their 
possession,  back  at  least  to  the  4th  of  December  1804,  the  date  of  the 


340  SUPREME  COURT  [Lancaster, 

[Morcer  v.  Wataon.] 

demise  upon  which  the  recovery  was  had,  if  not  to  the  1st  of  Feb- 
ruary 1802,  the  date  of  the  demise  in  the  first  action  of  ejectment; 
and  counting  their  possession  as  an  actual  one  from  either  of  these 
dates  to  the  6th  of  May  1829,  when  this  action  was  commenced 
against  them,  would  be  a  period  of  more  than  twenty-one  years,  and 
that  thus  they  had  been  in  the  actual  possession  of  the  land  ;  and 
that  the  plaintiff  is  therefore  barred  by  the  act  of  limitations.  It 
seems  to  me  that  to  adopt  this  construction  of  the  act,  in  respect  to 
what  shall  constitute  an  actual  adverse  possession  and  the  time  at 
which  it  shall  be  considered  'as  having  commenced,  would  be  disre- 
garding entirely  the  rule  already  mentioned,  by  which  every  one  may 
read  and  understand  the  statute,  and  substituting  another  which 
could  not  enter  into  the  mind  of  one  in  every  fifty  thousand ;  and  at 
the  same  time  would  be  giving  to  the  act  a  meaning,  in  this  respect, 
so  perfectly  artificial,  if  not  fanciful,  as  to  be  unintelligible  to  most 
minds. 

But  again,  what  would  be  the  effect  of  such  a  construction  in 
practice  ?  If  a  person  who  had  a  claim  of  doubtful  character  to  land 
in  the  possession  of  another  claiming  under  an  adverse  title,  were  to 
lie  by  until  a  few  days  before  the  twenty-one  years  had  run  and  then 
bring  his  action  of  ejectment,  laying  the  date  of  the  demise  in  the 
declaration  (supposing  the  form  of  the  action  of  ejectment  that  was 
in  use  at  the  time  of  passing  the  act  of  limitations  to  be  still  in  force) 
back  twenty  years  eleven  months  and  twenty  days,  the  time  at 
which  his  claim  or  title  first  accrued,  and  he  should  be  fortunate 
enough  to  succeed  on  the  trial  of  it,  by  obtaining  a  verdict  and  judg- 
ment, under  which  he  is  put  into  the  actual  possession  of  the  land 
after  the  twenty-one  years  from  the  date  of  his  demise  have  run ;  he 
would,  according  to  the  exposition  of  this  act  contended  for  by  the 
counsel  of  the  appellants,  be  protected  completely,  although  his  ad- 
versary had  been  in  the  actual  and  continued  adverse  possession  of 
the  land  twenty-one  years,  wanting  eleven  or  twelve  days  before  the 
commencement  of  the  action  of  ejectment,  and  more  than  the  twen- 
ty-one years  before  the  trial  of  the  cause ;  while  the  successful  party 
in  the  action,  on  the  contrary,  had  not  been  more  than  one  day,  and 
that  too  after  the  twenty-one  years  from  the  date  of  his  claim  had 
run.  Thus,  instead  of  making  the  act  a  shield  for  him  who  was  in 
the  actual  possession  of  the  land,  improving  it,  and  by  doing  so  add- 
ing wealth  and  power  to  the  commonwealth,  as  was  intended ;  would  it 
not  be  turning  it  completely  to  the  advantage  of  him  who  had  neither 
been  in  the  actual  or  constructive  possession,  but,  on  the  contrary, 
lying  by,  out  of  the  possession,  not  even  making  an  effort  to  obtain 
it,  until  the  twenty-one  years  had  all  but  expired,  when  he  com- 
mences his  suit  and,  by  a  lucky  and  perhaps  doubtful  verdict  and 
judgment,  he  is  put  into  the  actual  possession  of  the  land  for  the  first 
time  1  Then,  by  the  force  of  imagination,  his  actual  possession  of  the 
land  is  made  to  relate  back  (o  the  commencement  of  his  title.  Al- 
though the  principles  of  the  common  law  may  in  some  instances 


May  1833.]  OF  PENNSYLVANIA.  341 

[Mercer  v.  Watson.] 

permit  a  fiction  to  prevail,  in  order  to  prevent  mischief  or  to  afford 
and  advance  a  remedy  for  an  injury  sustained  by  the  violation  of  a 
real  subsisting  right,  yet  it  will  never  be  allowed  to  work  an  injury, 
or  to  create  a  right  or  title  that  has  no  existence.  The  rule  is,  in  fie- 
tione  juris  semper  equitas  existit ;  hence  a  person  who  has  a  perfectly 
good  and  available  title  to  land,  the, possession  of  which  was  illegally 
withheld  from  him  until  he  recovered  it  by  suit,  may,  when  thus 
restored  to  the  possession,  be  considered  by  relation  back  as  having 
been  in  during  all  the  time  he  was  kept  out  of  it,  so  as  to  enable 
him  to  recover  the  mesne  profits  for  that  period,  but  he  will  not  be 
permitted  to  invoke  such  imputed  possession  for  the  purpose  of  creat- 
ing title  or  of  aiding  a  defective  one.  In  short,  fiction  is  altogether 
inadmissible  whenever  it  would  defeat  or  militate  against  the  opera- 
tion of  an  act  of  the  legislature. 

It  has  also  been  contended  that  James  Mercer,  immediately  upon 
the  death  of  his  wife,  became,  by  the  then  existing  law  of  the  state, 
the  tenant  of  the  appellants.  That  he  came  within  the  description 
of  a  tenant  at  sufferance,  by  having  obtained  the  possession  lawfully 
through  his  marital  rights,  and  continuing  to  hold  it  after  the  death 
of  his  wife,  when  his  title  or  right  ceased.  2  Bl.  Com.  149, 150. 
Now,  admitting  the  statute  of  32  Hen.  8,  ch.  28,  sec.  6,  to  be  in  force 
here,  and  that  the  alienation  of  James  Mercer,  the  husband,  who 
was  seised  in  right  of  his  wife,  did  not,  therefore,  work  a  discontinu- 
ance of  her  estate,  as  it  would  otherwise  have  done  at  common  law ; 
still  it  cannot  be  doubted  for  a  moment,  but  that  he  conceived  and 
was  firmly  convinced  in  his  own  mind,  that  by  means  of  the  convey- 
ance executed  by  him  and  his  wife,  to  Nathan  Thompson,  and  the 
reconveyance  from  Thompson  to  him,  he  became  invested  with  a 
perfect  indefeasible  title  to  the  land  in  fee  simple.  As  corroborating 
evidence  of  this,  it  seems  that  he  resisted  the  claim  of  the  appellants, 
in  consequence  of  which  they  brought  an  action  of  ejectment  against 
him,  on  the  4th  of  February  1802.  From  this  time,  the  possession 
of  James  Mercer  was  clearly  adverse,  and  in  direct  opposition  to  the 
claim  of  the  appellants.  By  bringing  the  action  of  ejectment  against 
him,  they  declared  him  a  trespasser,  as  neither  holding  the  possession 
under  or  for  them  ;  so  that  after  recovering  in  their  action  of  eject- 
ment, they  could  not  have  maintained  an  action  of  assumpsit  for  the 
use  and  occupation  of  the  land  subsequently  to  that  time.  1  Term 
Rep.  378.  If  James  Mercer  had  at  any  time  admitted  himself  to 
have  been  the  tenant  of  the  appellants,  holding  possession  under  or 
for  them,  then  his  possession  might,  with  great  propriety,  be  consi- 
dered in  law  their  possession,  or  at  least  would  not  have  been  hostile 
or  adverse  to  them.  The  intention  of  the  legislature  as  manifested 
in  the  act  of  limitations  was,  that  wherever  a  person  was  permitted 
to  hold  the  actual  possession  of  land  either  by  himself  or  his  tenants, 
without  recognizing  or  admitting  right  or  title  to  it  in  any  other, 
but  uniformly  claiming  and  exercising  acts  of  ownership  over  it  as 
his  own,  for  the  space  of  twenty-one  years  or  upwards,  that  he  should 


342  SUPREME  COURT  [Lancaster, 

[Mercer  v.  Watson.] 

thereby  acquire  a  right  to  it,  the  peaceable  and  quiet  enjoyment  of 
which  thereafter  should  be  made  secure  to  him.  It  was  designed 
most  expressly  as  an  act.  of  repose.  At  the  time  this  act  was  passed, 
the  most  of  the  lands  within  the  state  being  wild  and  uncultivated,  it 
was  thought  advisable  to  encourage  the  improvement  of  them,  and 
among  several  acts  of  the  legislature,  passed  with  that  view,  I  think, 
the  act  of  limitations  may  be  considered  as  one  of  the  number.  But 
independent  of  this,  the  legislature  doubtless  intended  to  promote 
and  establish  the  peace  and  quiet  of  society,  so  far  as  securing  men 
in  the  future  enjoyment  and  peaceable  possession  of  lands,  which 
they  had  held  adversely  to  all  the  rest,  of  the  world,  and  been  im- 
proving for  a  space  of  twenty-one  years  or  upwards,  could  conduce 
to  that  end.  This  being  the  main  object  of  the  act,  constructive  and 
imaginary  possessions  or  tenancies  are  not  to  be  raised  when  they 
would  have  a  tendency  to  defeat  this  end.  On  the  contrary,  it  is 
the  duty  of  courts  to  give  such  construction  to  the  act  as  will  most 
effectually  carry  into  effect  the  design  of  the  legislature.  See  Thomp- 
son v.  Smithy  7  Serg.  fy  Rawle  209,  210.  Under  this  view  of  this 
question,  I  am  brought  to  the  conclusion,  that  the  appellants  never 
had  any  possession  of  the  land  in  dispute  which  the  act  could  operate 
on  until  1809,  when  they  got  it  under  their  writ  of  habere  facias 
possessionem  ;  and  as  this  action  was  commenced  against  them  within 
twenty-one  years  after,  that  they  are  not  protected  by  the  act  of 
limitations. 

I  now  come  to  the  third  question  which  has  been  presented  and 
argued  by  the  counsel  for  the  appellants ;  and  I  am  inclined  to  think 
that  the  facts  in  their  case  do  not  bring  them  within  the  provision  of 
the  fourth  section  of  the  act  of  1807  already  recited.  According  to 
the  letter  of  it,  there  must  be  two  verdicts  and  judgments  rendered 
thereon  in  favour  of  the  same  party,  in  order  to  form  a  bar  against 
another  action  ;  but  in  this  case  the  appellants  never  had  more  than 
one  verdict  in  their  favour,  upon  which  a  judgment  was  rendered  by 
the  circuit  court,  where  it  was  tried,  and  afterwards  affirmed  upon 
appeal  by  the  supreme  court.  In  the  action  of  ejectment  commenced 
against  them  after  they  got  possession  of  the  land  under  the  judg- 
ment in  their  favour,  the  verdict  and  judgment  of  the  court  thereon 
were  against  them,  instead  of  for  them  ;  and  had  this  latter  judg- 
ment not  been  reversed  upon  writ  of  error,  the  question,  which  of 
the  parties  had  the  better  right  to  the  land,  might  have  been  consid- 
ered perfectly  doubtful.  It,  however,  has  been  argued,  that,  as  this 
reversal  of  the  judgment  against  the  appellants  was  given  without 
awarding  a  venire  facias  de  novot  it  ought,  upon  an  equitable  con- 
struction of  the  act,  to  be  deemed  equivalent  to  a  second  verdict  and 
judgment  in  their  favour  ;  and  that  such  construction  ought  to  be 
given  to  it,  otherwise  the  mischief  intended  to  be  remedied  will  not 
be  effected.  After  assuming,  that  the  evil  existing  at  the  passage  of 
this  act,  and  intended  to  be  redressed  by  it,  was,  that  the  parties  liti- 
gating the  title  to  land  were  at  liberty  to  harass  and  vex  each  other 


May  1833.]  OF  PENNSYLVANIA.  343 

[Mercer  v.  Wataon.] 

with  as  many  actions  in  ejectment  in  succession  as  they  pleased — in 
short  to  make  the  strife  interminable,  it  is  contended,  that  the  legis- 
lature, therefore,  resolved  to  place  some  reasonable  limitation  upon 
such  course  of  proceedings,  by  restraining  the  losing  party  from  con- 
tinuing the  warfare  after  his  adversary  had  succeeded  in  two  differ- 
ent actions,  by  obtaining  in  each  of  them  a  positive  judgment  of  a 
court  of  competent  jurisdiction  in  his  favour  upon  his  title.  And 
that  wherever  that  is  had  in  a  manner  which  affords  the  party  losing 
the  same  chance  of  success  that  he  could  have  in  taking  the  verdicts 
of  juries  and  judgments  of  the  court  thereon,  his  case  ought  to  be 
considered  as  embraced  by  the  act,  and  coming  within  the  plain  and 
obvious  meaning  of  it,  although  not  within  the  letter  :  as,  for  in- 
stance, where  two  judgments  have  been  rendered  in  favour  of  the 
same  party  in  two  successive  actions,  upon  cases  stated  by  the  par- 
ties, or  in  issues  joined  in  demurrer  to  the  pleadings,  or  upon  demur- 
rer to  the  evidence,  instead  of  upon  two  general  verdicts  upon  the 
same  title  to  the  same  land.  Now,  admitting  this  reasoning  and 
view  of  the  matter,  in  support  of  the  construction  which  this  act 
ought  to  receive,  to  be  correct,  and  I  think  there  is  great  force  in  it, 
still  the  case  of  the  appellants  falls  short  of  those  put  by  way  of  illus- 
tration. The  second  judgment  which  the  appellants  claim  to  have 
had  in  their  favour,  was  merely  a  judgment  of  reversal,  pronounced 
by  this  court ;  which  went  no  further  than  to  ease  or  relieve  them 
from  the  operation  of  a  judgment  considered  erroneous  on  account 
of  a  question  of  law,  whether  a  deed  of  conveyance  had  been  exe- 
cuted and  certified  in  such  manner  as  to  make  it  effectual  for  a  cer- 
tain purpose  or  not,  having  been  decided  incorrectly  by  the  court 
below.  It  cannot  be  taken  as  a  judgment  of  this  court,  rendered  in 
favour  of  the  appellants,  after  an  examination  of  the  whole  ground 
of  controversy,  and  of  the  respective  titles  of  both  parties.  The 
impropriety  of  admitting  it  to  have  such  an  effect  as  contended  for, 
is  very  apparent ;  because  the  state  of  the  record  from  the  court 
below  does  not  present  in  such  case  to  the  court  above,  the  whole 
chain  of  title  produced  by  the  parties  respectively  in  the  court  below, 
and  under  which  they  claimed  the  possession  of  the  land ;  and 
therefore  it  is,  that  the  judgment  of  reversal  cannot  be  considered  a 
judgment  concluding  the  parties  from  all  further  litigation  of  the 
title  to  the  land.  But  in  the  case  of  an  erroneous  judgment  being 
rendered  in  the  court  below  upon  a  case  stated,  issue  joined  in  demur- 
rer to  the  pleadings,  or  on  demurrer  to  the  evidence,  the  court  above 
have,  by  the  record  returned  to  them,  a  view  of  the  whole  case  pre- 
sented to  them,  and  will  not  only  reverse  the  judgment  of  the  court 
below,  but  give  the  judgment  which  the  court  below  ought  to  have 
rendered  ;  which  is  to  be  looked  upon  as  the  conclusion  of  the  law 
resulting  from  all  the  facts  and  circumstances  involved  in  the  cause  ; 
whereas  a  judgment  merely  reversing  the  judgment  of  the  court 
below  rendered  upon  a  general  verdict,  may  be,  and  often  is,  for  a 
cause  that  does  not  ultimately  vary  or  change  the  final  determina- 


344  SUPREME  COURT  [Lancaster, 

[Mercer  v.  Watson.] 

lion  of  the  case.  And  to  say,  that  the  reversal  of  a  judgment  ren- 
dered upon  a  general  verdict  without  awarding  a  venire  facias  de  novo, 
shall  cause  it  to  have  a  different  effect  from  what  it  would  otherwise 
have,  and  make  it  conclusive  against  all  further  litigation  of  the 
same  cause  of  action,  would  be  carrying  it  too  far,  and  beyond  the 
sanction  of  either  reason,  practice  or  authority.  It  may  furnish  some 
ground  to  presume,  that  the  party  against  whom  the  writ  of  error 
was  sued  out,  or  the  court,  or  both  if  you  please,  thought,  that  from 
the  nature  of  the  case  that  had  been  declared,  a  venire  facias  de  novo 
would  not  be  likely  to  be  available  to  the  defendant  in  error,  but 
not  to  prevent  absolutely  his  bringing  a  new  action,  in  case  he  should 
afterwards  change  his  mind,  or  discover  that  he  can  supply  what  was 
wanting  before,  or  in  any  way  overcome  the  difficulty  or  objection 
then  interposed  to  his  recovery. 

Upon  the  whole,  I  am  satisfied  that  upon  the  most  equitable  con- 
struction, that  the  object  assigned  for  the  passing  of  the  act,  and, 
from  the  terms  employed  in  it,  that  the  legislature  did  not  intend  to 
bar  the  party  from  bringing  a  new  action  of  ejectment  for  the  same 
land,  upon  the  same  title,  until  after  two  decisions  should  be  had 
against  him  upon  a  full  view  and  consideration  of  the  whole  of  his 
case,  and  all  the  circumstances  connected  with  it  which  he  might 
think  material,  either  by  two  judgments  of  a  court  of  competent  ju- 
risdiction rendered  upon  general  verdicts,  special  verdicts,  cases  stated, 
or  in  cases  of  demurrrer  to  the  pleadings  or  the  evidence. 

Beyond  what  the  act  in  this  behalf,  upon  a  reasonable  construc- 
tion of  it,  will  warrant,  we  are  not  at  liberty  to  go.  What  a  court 
of  chancery  would  do  or  has  done  under  similar  circumstances,  is  not 
to  be  our  guide ;  because  I  consider  the  act  of  assembly  as  having 
been  given  to  us  for  the  rule  of  our  decision  as  to  the  number  of  ac- 
tions of  ejectment,  verdicts  and  judgments  that  shall  be  a  bar  to  any 
subsequent  action  between  the  same  parties,  upon  the  same  title,  for 
the  same  land. 

The  judgment  of  the  circuit  court  is  affirmed. 


A  CAUSE  between  the  same  parties,  for  the  same  land,  was 
brought  before  the  supreme  court,  by  a  writ  of  error  to  the  district 
court  of  Lancaster  county,  which  presented  some  points  not  embraced 
in  the  foregoing  case  ;  it  was  argued  at  an  adjourned  court  held  in 
November  last. 

After  verdict  and  judgment  in  the  circuit  court  below,  Jane  Wat- 
son, the  mother  of  the  defendants,  presented  a  petition  to  the  court, 
setting  forth,  that  some  of  her  children,  who  were  defendants,  were 
minors,  and  praying  that  a  writ  of  error  coram  vobis  might  issue  ;  it 


May  1833.]  OF  PENNSYLVANIA.  345 

[Mercer  v.  Watson.] 

was  issued,  and  the  error  was  formally  assigned,  and  the  question 
argued.  The  opinion  of  that  court  embraces  all  the  material  facts, 
and  is  here  given,  because  of  the  extensive  examination  made  of  the 
subject  by  his  honour,  the  president  of  the  court. 

A.  L.  Hays,  president. 

The  plaintiffs,  on  the  9th  of  June  1829,  assigned  for  error  that  Pat- 
terson Watson,  Hetty  Watson,  Maria  Watson  and  Jane  Watson,  de- 
fendants in  the  action  of  ejectment,  appeared  by  attorney,  although 
at  the  institution  of  the  suit,  and  at  the  time  of  their  appearance,  and 
at  the  trial  and  rendition  of  judgment,  they  were  minors  under  the 
age  of  twenty-one. 

To  which  the  defendant  replied  by  his  plea,  that  before  the  return 
day  of  the  writ  of  ejectment  (which  issued  on  the  26th  of  April 
1826),  Jane  Watson  was  (viz.  on  the  6th  of  June  1826)  duly  ap- 
pointed by  the  orphan's  court  of  Lancaster  county,  guardian  over  the 
persons  and  estates  of  her  children,  the  minors  aforesaid  ;  that  the 
said  Jane  Watson,  who  was  co-defendant  in  that  suit,  and  one  of  the 
plaintiffs  in  error,  employed  James  Hopkins  and  John  R.  Montgomery, 
esquires,  to  appear  as  counsel  in  the  action  of  ejectment,  not  only 
for  the  purpose  of  defending  her  own  rights,  but  also  the  rights  of 
her  said  wards ;  that  the  said  James  Hopkins  and  John  R.  Montgo- 
mery, upon  the  return  of  the  writ  of  ejectment,  on  the  12th  of  June 
ensuing,  appeared  for  all  the  defendants,  and  entered  their  appear- 
ance of  record,  and  on  the  llth  of  September  1825,  put  in  the  plea 
of  Not  guilty  for  all  the  defendants  ;  that  the  said  Jane  Watson,  guar- 
dian, &c.,  personally  attended  on  the  6th  of  December  1826,  at  the 
trial  of  the  cause,  and  that  the  plaintiffs  in  error  never  alleged,  during 
the  whole  trial,  nor  until  after  verdict,  that  the  minors  were  not 
defending  the  said  ejectment  by  their  guardian,  Jane  Watson  ;  that 
after  the  verdict,  the  defendants,  on  the  8th  of  December  1826, 
moved  the  court  for  a  new  trial,  alleging  as  a  reason  the  infancy  of 
the  above  named  minors,  verified  by  the  affidavit  of  David  Watson, 
and  not  by  the  oath  of  Jane  Watson,  their  guardian;  and  that  the 
district  court,  after  full  hearing,  discharged  the  rule,  which  had  been 
granted  to  show  cause. 

The  plaintiffs  to  this  plea  have  demurred,  setting  forth  the  follow- 
ing causes  of  special  demurrer,  viz. 

1.  That  the  plea  is  argumentative,  evasive,  and  no  answer  to  the 
assignment  of  errors. 

2.  That  it  is  contradictory  and  repugnant  to  the  record. 

3.  That  it  assigns  to  John  R~  Montgomery  and  James  Hopkins, 
esquires,  the  duty  of  appearing  for  the  defendants  as  counsel,  when 
that  duty  belongs  to  attorneys  and  not  to  counsel. 

4.  That  the  plea  has  not  any  relevant,  pertinent  or  issuable  matter 
in  it;  John  .Mercer  being  estopped  and  precluded,  by  the  record  of 
this  ejectment,  from  alleging  any  of  the  matters  in  the  said  plea. 


346  SUPREME  COURT  [Lancaster, 

[Mercer  v.  Wataon.] 

5.  That  the  plea  contains  no  venue. 

6.  That  it  is  in  other  respects  uncertain,  informal  and  insufficient 
in  law. 

The  defendants  in  error  joined  in  the  demurrer,  and  the  court 
having  heard  the  arguments  of  counsel  and  maturely  considered 
them,  I  now  proceed  to  give  my  opinion,  with  the  reasons  on  which 
it  is  formed. 

And  first,  as  to  these  causes  of  special  demurrer. 

The  plaintiffs  object  that  this  plea  is  argumentative,  evasive  and 
no  answer  to  their  assignment  of  errors ;  but  they  have  omitted  to 
specify  in  what  respect  or  particular  it  is  chargeable  with  these  faults. 
There  is  nothing  but  the  above  general  allegation.  It  is,  neverthe- 
less, perfectly  settled  with  regard  to  the  degree  of  particularity,  the 
special  demurrer  must  assign  the  ground  of  objection,  under  the 
statutes  requiring  the  party  to  set  down  and  express  his  special  ex- 
ceptions in  demurring  for  form  ;  that  it  is  not  sufficient  to  object  in 
general  terms,  that  the  pleading  is  "  uncertain,  defective,  informal, 
and  the  like,"  but  it  is  necessary  to  show  in  what  respect  it  is  un- 
certain, defective,  informal,  &c.  This  objection,  in  the  manner  in 
which  it  is  here  stated,  is  nothing  more  than  the  allegation  of  the 
general  demurrer  repeated,  and  it  is  clearly  insufficient  as  a  ground 
of  special  demurrer. 

2.  They  object  in  the  second  place,  that  the  plea  is  contradictory 
and  repugnant  to  the  record.     If  a  pleading  be  inconsistent  with 
itself,  that  is  a  fatal  defect  on  special  demurrer.     As  in  an  action  of 
trespass,  the  plaintiffs  declared  for  taking  and  carrying  away  certain 
timber,  lying  in  a  certain  place  for  the  completion  of  a  house,  then 
lately  built,  the  declaration  was  considered  bad  for  repugnancy;  for 
the  timber  could  not  be  for  the  building  of  a  house  already  built.    But 
the  objection  here  stated  is  not  that  the  plea  is  repugnant  in  itself, 
but  that  it  is  repugnant  to  the  record  ;  which  is  equivalent  that  it  is 
a  false  plea,  because  it  is  contradicted  by  the  evidence  of  the  record. 
A  false  plea,  however  reprehensible,  is  not  to  be  taken  advantage  of 
by  special  demurrer,  unless  the  falsity  appear  by  the  plaintiff,  for, 
though  false  in  fact,  it  may  be  good  as  to  form;  and  in  general  there 
is  no  way  of  proving  the  falsehood  of  an  allegation  in  pleading  until 
issue  had  been  taken  and  trial  had  upon  it. 

3.  With  regard  to  the  matter  of  the  third  objection,  I  understand 
the  plea  as  averring  that  Jane  Watson  employed  James  Hopkins  and 
John  R.  Montgomery,  esquires,  to  appear  as  counsel  to  defend  her  rights 
and  those  of  her  wards  in  the  action  of  ejectment,  and  that  they  ac- 
cordingly did  so  appear.     In  this  there  is  no  informality,  nor  any 
kind  of  inaccuracy.     It  is  true,  parties  are  technically  and  properly 
said  to  appear  to  suits  by  attorney  and  not  by  counsel;  but  this  plea 
did  not  intend  to  aver  a  mere  technical  appearance  of  the  minors  by 
attorney,  but  an  appearance  by  guardian.     To  have  averred  an  ap- 
pearance by  attorney  would  have   confessed  the   error  assigned. 
Counsellor  and  counsel  are  terms  familiar  to  the  law.     Their  pro- 


May  1833.]  OF  PENNSYLVANIA.  347 

[Mercer  v.  Watson.] 

vince  is  not  simply  to  appear  to  actions,  it  is  to  conduct  the  suit  by 
their  advice  and  advocacy  through  all  its  progress  and  in  the  difficult 
emergencies  of  a  trial  by  jury  and  of  arguments  before  the  court. 
The  fact  of  the  application  of  the  guardian  to  counsel  to  defend  the 
rights  of  her  wards  as  well  as  her  own,  and  of  their  actually  engaging 
in  such  defence,  is  set  forth  in  this  plea  with  due  formality.  The 
third  objection  is  therefore  not  sustained. 

4.  The  fourth  is,  that  defendant  is  estopped  from  averring  any  of 
the  matters  in  the  said  plea  by  the  record  of  the  ejectment ;  and  that 
the  plea  therefore  contains  no  relevant,  pertinent  or  issuable  matters 
in  it.     The  marking  of  the  names  of  counsellors  or  attorneys  in  the 
margin  of  the  docket  is  chiefly  intended  to  notify  the  court  and  the 
opposite  party,  of  the  fact  that  such  attorney  or  counsellor  is  con- 
cerned in  the  causes.     Additional  names  are  often  marked  after  the 
regular  appearance  is  entered,  and  the  pleadings  are  concluded;  and 
it  not  unfrequently  happens  that  counsel  appear,  without  any  margi- 
nal note  of  the  circumstance,  or  any  entry  on  the  record  to  indicate 
it.    The  omission  certainly  would  not  preclude  a  party  from  averring 
or  showing  the  real  state  of  the  fact ;  and  therefore  if  the  attorneys' 
names  were  marked  as  appearing  for  one  of  several  parties,  evidence 
might  still  be  adduced  to  show  that  he  appeared  for  all.     This  ob- 
jection goes  the  length  of  asserting  that  any  entry  of  an  attorney's 
name  on  the  margin  of  the  docket  of  a  suit,  shall  estop  the  adverse 
party  from  showing  that  the  attorney  did  not  in  fact  appear  at  all,  or 
that  the  party  appeared  by  any  other  person.  But  the  rule  of  law  is, 
that  a  man  shall  only  be  estopped  by  his  own  act  or  acceptance,  to  say 
the  truth.     Nor  will  a  record  estop  when  the  thing  alleged  is  con- 
sistent with  it.     Therefore  where  the  mere  marginal  noting  may 
mean  that  the  person  whose  name  is  thus  marked  has  engaged  his 
services  as  attorney  or  counsel,  the  adverse  party  especially  is  not 
precluded  from  saying  that  he  appeared  as  counsel.    For  an  estoppel 
ought  to  be  certain  to  every  intent ;  and  if  a  thing  be  not  directly 
and  precisely  alleged,  it  shall  be  no  estoppel. 

5.  The  fifth  objection  of  want  of  venue  in  the  plea  was  properly 
abandoned  on  the  argument.    And  the 

6.  Sixth  and  last,  being  inoperative  and  insufficient  on  account  of 
its  generality ;  I  find  nothing  in  all  these  objections  (and  it  is  not 
competent  to  go  out  of  the  grounds  specially  assigned  by  the  plain- 
tiffs) which  justly  affects  the  form  of  this  plea. 

The  question  then  occurs  upon  the  substance  of  it,  the  facts  there- 
in stated  being  admitted  by  the  demurrer;  whether  there  was  in  the 
action  of  ejectment,  a  sufficient  appearance  for  the  defendants,  who 
were  minors,  or  not. 

On  the  argument  for  a  new  trial  no  definitive  opinion  was  formed 
by  me  upon  this  question.  So  far  only  I  proceeded  in  the  investi- 
gation, as  to  discover  that  it  was  by  no  means  clear,  that  there  was 
not  good  appearance  by  guardian,  and  I  therefore  was  of  opinion  that 
there  ought  not  to  be  a  new  trial.  I  state  the  fact  now,  partly  be- 


348  SUPREME  COURT  [Lancaster, 

[Morcer  v.  Watson.] 

cause  it  was  assumed  on  the  argument  of  the  demurrer,  that  the 
the  question  had  been  decided  on  the  former  occasion,  and  partly  in 
order  to  introduce  the  remark  that  I  have,  on  the  demurrer,  taken  up 
the  subject  anew,  and  investigated  it  without,  I  believe,  being  biassed 
by  any  preconceptions. 

The  first  principles  of  justice  require  that  they  who  are  incapable 
from  want  of  judgment  and  experience  of  transacting  their  own  af- 
fairs, should  not  be  permitted  to  become  victims  of  the  cupidity,  supe- 
rior knowledge,  and  skill  of  others.  To  this  class  belong  infants  and 
minors.  It  is  accordingly  declared  by  Justinian,  in  his  Institutes, 
to  be  agreeable  to  the  laws  of  nature,  that  the  persons  under  puberty, 
who  by  reason  of  their  unripe  age  are  unable  to  protect  themselves, 
should  be  under  the  government  of  such  as  could  protect  them  ;  and, 
therefore,  by  the  civil  law,  guardians,  who  were  called  tutors  or  cu- 
rators, were  assigned  to  minors,  without  whose  sanction  no  contract 
would  bind  an  infant,  though  it  was  binding  upon  the  other  party. 

Upon  the  same  principle  the  French  Code  commits  minors  to  the 
care  of  a  tutor,  who  is  to  take  charge  of  their  persons,  and  represent 
them  in  all  civil  transactions,  manage  their  property,  and  be  account- 
able for  the  damages  or  injuries  occasioned  by  their  misconduct. 
The  guardian,  at  common  law,  performs  the  office  of  tutor  or  curator 
of  the  Roman  civil  law,  the  former  of  whom,  says  Blackstone,  had 
the  charge  of  the  maintenance  and  education  of  the  minor,  the  latter 
the  care  of  his  fortune.  Infants  have  various  privileges  and  various 
disabilities,  and  even  their  disabilities  are  privileges,  since  their  ef- 
fect is  to  secure  them  from  hurting  themselves  by  their  own  impro- 
vident acts.  They  are  regularly  allowed  to  rescind  all  contracts  in 
pais  made  during  minority  (except  for  schooling  and  necessaries), 
be  they  ever  so  much  to  their  advantage;  and  the  reason  assigned  is 
the  indulgence  the  law  has  thought  fit  to  give  infants,  who  are  sup- 
posed to  want  judgment  and  discretion  in  their  contracts  and  trans- 
actions with  others,  and  the  care  it  takes  of  them  in  preventing 
them  from  being  imposed  upon  or  overreached  by  persons  of  more 
years  and  experience.  Wanting  discretion  to  make  a  contract  to  any 
amount  however  inconsiderable,  they  are,  a  fortiori,  deemed  incapa- 
ble of  safely  conducting  a  law  suit,  and  are  therefore  not  suffered  to 
endanger  their  rights  by  pursuing  a  claim  or  defending  a  suit  in  a 
court  of  justice,  without  the  aid  of  some  one  whose  judgment  and 
ability  may  supply  their  deficiency.  Hence,  among  the  privileges 
conceded  to  infancy,  is  the  rule  that  they  cannot  sue  but  by  guar- 
dian or  prochein  ami,  nor  be  sued  but  under  the  protection  of  their 
guardian,  whose  duty  it  is  to  defend  them  against  all  attacks,  as 
well  by  law  as  otherwise,  a  rule  than  which  none  can  be  more  exten- 
sively recognized,  or  established  upon  a  better  foundation. 

What  then  is  meant  by  an  appearance  and  defence  in  an  action, 
and  particularly,  when  it  is  said  that  an  infant  shall  appear  and 
defend  by  guardian?  This  is  considered  as  an  important  privilege 
of  the  infant:  justly  so,  for  it  is  evident  that  his  privileges  with  regard 


May  1833.]  OF  PENNSYLVANIA.  349 

[Mercer  v.  Watson.] 

to  contracts  and  other  transactions  would  be  of  slight  utility,  if  he 
were  liable  to  be  dragged  into  court  and  exposed  there,  unprotected 
in  his  ignorance,  to  contend  with  skill  in  business,  with  learning 
and  experience. 

There  is  no  imaginable  situation  in  which  an  infant  would  be 
likely  to  suffer  more  from  imbecility  of  understanding.     It  may  easily 
be  seen  that,  under  these  circumstances,  he  would  soon  be  stripped 
of  his  all.     It  is  to  protect  him  against  such  danger,  that,  the  law 
assigns  him  a  guardian  in  the  suit.     This  guardian  is  to  do  for  him 
what  with  riper  judgment  he  would  do  for  himself ;  he  is  to  appear 
for  him  in  his  proper  person,  employ  competent  attorneys  and  coun- 
sel to  prepare  and  plead  his  cause  ;  he  is  to  collect  testimony,  sum- 
mon witnesses,  and  at  the  trial  to  afford  such  aid  to  his  counsel  as 
may  be  necessary  in  unexpected  difficulties.    It  is  only  by  exercising 
that  attention  and  vigilance  in  the  cause  of  the  minor,  which  he 
would  exert  in  his  own,  that  he  fairly  discharges  his  duty.     When 
all  this  has  been  done,  every  thing  in  point  of  privilege  has  been 
secured  to  the  infant  which  the  law  contemplates,  or  justice  demands. 
Itis  something  more  than  a  mere  technical  defence,  which  is  required 
by  the  guardian  ;  for  these  he  might  furnish,  and  yet  abandon  the 
essential  interests  of  his  ward,  by  coming  in  at  the  return  of  the  writ 
and  entering  a  plea,  and  afterwards  wholly  neglecting  the  cause. 
An  appearance  in  general  is  either  by  the  suitor  in  his  proper  person, 
or  by  his  attorney.     But  the  infant  cannot  appear  in  his  own  person, 
nor  can  he  authorize  an  attorney  to  appear  for  him  ;  he  can  only 
appear  by  his  guardian,  who  derives  his  authority,  not  from  the  in- 
fant, but  from  the  court  by  which  he  is  appointed.     In  England  the 
guardian  is  either  assigned  by  the  court  in  which  the  suit  is  brought, 
or  by  writ  out  of  chancery ;  every  court  there  having  the  power  ex 
necessitate  of  assigning  to  an  infant  suitor  a  guardian  pro  lite,  and  it 
is  requisite  that  the  guardian  should  be  specially  admitted  to  prose- 
cute or  defend.     The  guardian  in  case  of  an  infant  defendant,  is 
constituted  upon  the  infant's  appearance  with  the  person  intended 
before  a  judge  at  his  chambers,  or  else  upon  his  petition  accompanied 
by  an  agreement  signed  by  the  intended  guardian,  and  an  affidavit 
of  the  fact.     The  judge  thereupon  grants  his  fiat,  upon  which  the 
rule  or  order  for  the  admission  is  drawn  up  by  the  proper  clerk. 
If  the  defendant  does  not  appear  by  guardian  in  the  time  allowed  by 
the  rules  of  court,  the  plaintiff  must  procure  an  affidavit  of  the  service 
of  the  writ,  and  that  the  defendant  is  an  infant  and  has  not  appear- 
ed ;  upon  which  an  order  will  be  granted,  that  unless  the  infant  ap- 
pears, within  six  days  after  the  personal  service  of  the  order,  plain- 
tiff may  assign  John  Doe  for  his  guardian,  and  enter  appearance  for 
defendant.     A  record  of  the  admission  is  made  in  the  common  pleas, 
but  in  the  king's  bench  it  is  only  recited  in  the  court,  &c.,  as,  J  S, 
per  Ji  B,  guardianum  suum,  ad  hoc  per  curiam  specialiter  admissum,  &c. 
But  this  record  appears  not  to  be  essential,  for  where  the  plaintiff, 
being  an  infant,  had  sued  by  his  guardian,  but  the  entry  on  the  roll 


350  SUPREME  COURT  [Lancaster, 

[Mercer  v.  Watson.] 

was  no  more  but  J  S,  guardianwn  suum,  omitting  the  clauses,  per 
curiam  spedaliter  admissum,  as  tlie  common  course  is,  and  as  it  was 
alleged  it  ought  to  be  ;  but,  per  curiam,  the  entry  is  sufficient,  for  if, 
in  fact,  the  guardian  was  not  admitted  by  the  court,  a  writ  of  error  lies. 
In  the  present  case,  Jane  Watson,  the  first  named  defendant,  and 
mother  of  the  said  minors,  was  appointed,  by  the  orphan's  court  of 
this  county,  between  the  issuing  of  the  writ  and  its  return,  guardian 
of  the  said  minors  ;  she  employed  counsel  to  appear  and  defend  her 
own  rights  and  those  of  her  wards  in  this  suit :  who  accordingly 
appeared  on  the  return  of  the  writ,  and  afterwards  entered  the  plea 
of  Not  guilty  for  all  the  defendants.  She  moreover  personally 
attended  at  the  trial  of  the  cause,  which  was  conducted  on  the  part 
of  the  defendants  by  her  counsel ;  and  it  was  never  alleged,  during 
the  whole  of  the  trial,  nor  after  verdict,  that  the  said  minors  were 
not  defending  by  their  guardian. 

But  still  it  is  contended  that  it  was  the  duty  of  the  plaintiffs  in 
the  ejectment  to  apply  to  this  court,  conformably  to  the  English 
practice,  for  the  purpose  of  having  a  guardian  assigned  ad  litem  for  the 
defendants,  who  were  minors.  This  however  was  urged  without 
adverting  to  the  provisions  of  the  act  of  assembly,  passed  the  27th  of 
March  1713,  by  which  the  power  of  appointing  guardians  is  vested 
in  the  orphan's  courts,  and  the  guardians  so  appointed  are  constituted 
pro  lite  in  general,  as  well  as  for  every  other  purpose.  The  seventh 
section  enacts  that,  "  all  guardians  and  prochein  amis  which  shall  be 
appointed  by  any  of  the  said  orphan's  courts,  shall  be  allowed  and  re- 
ceived without  further  admittance  to  prosecute  and  defend  all  actions 
and  suits  relating  to  orphans  and  minors,  as  the  case  may  require,  in 
any  court  or  courts  of  this  province."  Thus  the  necessity  and  with 
it  the  power  of  assigning  guardians  ad  litem  is  taken  from  the  other 
courts,  wherever  the  orphan's  court  has  made  an  appointment.  Nor 
is  it  by  any  means  requisite  that  the  orphan's  court  guardians  should 
be  specially  admitted  in  the  other  courts,  for  the  express  language  of 
the  act  is,  that  he  shall  be  allowed  and  received  without  further  ad- 
mittance. As  Jane  Watson  was,  at  the  return  of  the  writ  of  ejectment, 
the  lawful  guardian  of  the  minors  in  question  by  regular  appointment 
of  the  orphan's  court,  any  application  to  this  court  to  assign  a  guar- 
dian ad  litem,  or  to  admit  the  guardian,  would  have  been  idle  and 
improper. 

It  is  to  be  observed,  that  this  action  was  well  brought.  It  is  not 
necessary  that  the  guardian  should  be  joined  in  the  writ,  and  it  was 
impossible  in  this  case  to  connect  with  the  minors,  the  name  of  a 
guardian  as  such,  because  when  the  writ  issued  there  was  no  guard- 
ian. 

But  Jane  Watson  having  become  the  guardian  of  her  co-defendants, 
who  were  minors,  and  been  summoned  with  them,  they  enjoyed  all 
the  advantage  of  being  joined  with  their  guardian  in  this  suit  to 
every  intent.  Had  she  been  appointed  before  the  suit  was  brought, 
and  the  writ  had  run  against  Jane  Watson,  and  the  minors  (naming 


May  1833.]  OF  PENNSYLVANIA.  351 

[Mercer  v.  Watson.] 

them)  by  the  said  Jane  Watson,  their  guardian,  and  had  all  the  pro- 
ceedings up  to  the  finding  of  the  jury  taken  place  precisely  as  they 
have,  would  there  have  been  any  ground  for  cavil  in  this  case  1  And 
yet,  as  it  would  not  have  been  necessary  to  have  added,  "  by  Jane 
Watson  their  guardian,"  though  she  were  guardian,  it  is  difficult  to 
tell  why  the  case  would  have  been  better  with  these  words  than 
without  them. 

But  it  is  contended  further,  that  the  gentlemen  who  acted  as  coun- 
sel for  the  defendants,  appeared  for  them  as  their  attorneys  in  the 
ejectment,  because  they  are  in  fact  attorneys  of  the  court,  because 
their  names  are  marked  upon  the  record  in  this  suit,  and  because 
counsel  or  counsellors  are  unknown  to  our  laws. 

If  by  our  laws  be  meant  our  acts  of  assembly,  the  reference,  I  con- 
ceive, would  be  too  limited  to  establish  the  position  contended  for, 
since  these  acts  constitute  but  a  small  portion  of  the  laws  by  which 
we  are  governed.  But  in  point  of  fact,  counsel  and  counsellor  are 
terms  recognized  by  our  constitution,  and  by  the  various  acts  of  assem- 
bly. They  are  terms  also  familiar  to  the  language  of  the  bar  and 
the  bench,  to  the  reported  decisions  of  our  supreme  court,  and  they 
occur  in  the  rules  of  all  our  courts.  The  first  of  the  rules  of  the 
court  of  common  pleas  of  this  county,  which  are  adopted  by  the  dis- 
trict court,  commences  thus :  "  no  person  shall  be  admitted  to  practise 
as  attorney  or  counsellor  at  law  unless,"  &c.  It  is  true,  the  gentle- 
men who  appeared  as  counsel  in  this  case,  are  attorneys  of  the  court, 
and  that  their  names  are  marked  upon  the  record  of  the  present  ac- 
tion. No  conclusive  argument,  however,  is  deducible  from  either  of 
these  circumstances.  In  England,  attorneys,  and  counsel  or  barris- 
ters, constitute  separate  and  distinct  orders  of  the  legal  profession  ; 
and  a  barrister  or  counsellor  cannot  act  as  attorney,  unless  he  first 
apply  to  his  society  to  be  disbarred.  Attorneys  at  law  properly  so 
called,  were  introduced  by  the  statute  of  Westminster,  2  C.  10,  by 
which  suitors  were  first  permitted  to  appoint  agents  in  their  place, 
stead  or  turn,  to  manage  their  matters  of  law  in  their  absence ;  an- 
terior to  which,  parties  were  obliged  to  appear  in  person  to  prosecute 
or  defend  their  suits,  unless  by  special  license  under  the  king's  letters 
patent.  Yet  it  seems,  says  Stephens,  author  of  the  learned,  and 
elegant  treatise  on  the  Principles  of  Pleading,  that  this  is  only  to  be 
understood  of  appearance  by  attorney,  and  not  the  conduct  of  the  suit 
after  appearance  once  made.  Bracton  makes  express  mention  of 
pleaders,  counsel  and  advocates  in  the  reign  of  Henry  3,  and  it  appears 
that  there  were  persons  learned  in  the  law,  and  skilful  in  pleading 
causes,  as  early  as  the  reign  of  William  Rufus.  Appearance  by  attor- 
ney, and  appearance  by  counsel  in  a  cause,  are  distinctly  different:  the 
former  being  the  substitution  of  a  legal  agent  for  the  personal  attend- 
ance of  the  suitor  ;  the  latter,  the  attendance  of  an  advocate,  without 
whose  aid,  neither  the  party  attending  in  proper  person,  nor  his 
attorney  in  his  stead,  could  safely  proceed.  The  appearance  by 
attorney  does  not,  any  more  than  the  personal  appearance  of  the  suit- 


352  SUPREME  COURT  [Lancaster, 

[Mercer  v.  Watson.] 

or,  preclude  or  supersede  the  appearance  of  counsel ;  so  neither  does 
the  appearance  by  guardian.  The  infant's  privilege  would  be  mis- 
erably abridged,  if  his  guardian  could  not  avail  himself  of  the  aid  of 
counsel,  in  liiigation  with  those  who  had  the  advantage  of  such  as- 
sistance. With  us,  counsel  are  always  attorneys,  and  by  the  rule 
just  cited,  members  of  the  bar  are  admitted  to  practise,  either  as 
attorneys  or  counsellors ;  but  though  the  characters  are  united  in  one 
person,  the  functions  of  attorney  and  counsel  are  as  distinct  here  as 
in  England.  Our  counsel  then,  as  attorneys,  appear  for  suitors,  re- 
presenting them  before  the  court  as  their  substitutes,  and  in  their 
absence  ;  but  as  counsel,  they  likewise  appear  to  manage  and  con- 
duct the  suit  through  all  its  subsequent  progress.  As  counsel,  not 
as  attorneys,  they  appear  for  those  who  are  before  the  court  in  pro- 
priis  personis,  for  be  who  appears  in  his  own  person,  cannot  appear 
by  attorney  ;  and  as  counsel,  not  as  attorneys,  they  appear  for  guard- 
ians, who  must  appear  in  their  proper  persons.  Upon  the  entry  of 
the  names  upon  the  margin  of  the  record,  some  observations  were 
made  in  reference  to  the  fourth  objection  of  the  special  demurrer. 
These  entries  are  often  made  in  our  practice,  after  the  appearance  by 
the  party,  or  by  attorney.  When  a  counsel  is  taken  in  at  the  trial 
court,  it  is  not  unusual,  I  believe,  for  him  thus  to  enter  his  name. 
The  entry,  denoting,  as  it  may,  either  an  appearance  by  attorney,  or 
an  appearance  by  counsel,  is  to  be  construed  by  the  fact,  and  not 
the  fact  by  the  entry.  To  resort  to  the  supposition  before  made,  that 
the  writ  in  this  case  had  been  against  Jane  Watson,  and  the  minors 
(naming  them)  by  the  said  Jane  Watson  their  guardian;  would  the  mark- 
ing of  the  names  of  the  counsel  employed  by  her,  have  furnished  the 
slightest  objection  1  But  as  it  was  not  necessary  under  any  circum- 
stance, that  the  writ  should  have  been  so  framed,  and  according  to 
the  facts  it  could  not  have  been  so  framed  in  the  present  case  ;  can 
that  now  be  any  valid  objection,  which  an  immaterial  and  unneces- 
sary addition  would  have  obviated  1  Every  thing  appears  to  have 
been  done  by  the  guardian  in  defence  of  this  action,  that  the  protec- 
tion of  the  minors  (the  principle  on  which  the  institution  of  guardian- 
ship is  founded)  required  to  be  done.  And  indeed,  such  was  Jane 
Watson's  situation  as  co-defendant,  with  interests  in  the  cause  similar 
to  those  of  her  children,  that  she  could  not  have  omitted  any  thing 
essential  which  her  duty  as  guardian  demanded,  without  sacrificing 
her  own  rights,  together  with  those  of  her  wards.  There  has  been 
then,  in  fact,  and  to  every  beneficial  purpose,  an  appearance  of  the 
minors  by  their  guardian  :  shall  it  be  said  that  all  this  is  to  go  for 
nothing,  because  the  record  has  not,  by  some  formal  entry,  exhibited 
the  fact  of  such  appearance  1  This  proposition  it  would  be  difficult 
to  maintain,  even  by  the  strict  precedents  of  English  proceedings. 
Many  acts  of  parliament  now  in  force,  require  attorneys  to  file  their 
warrants  in  every  action,  yet  the  practice  has  wholly  fallen  into  dis- 
use, and  warrants  of  attorney  are  in  England  neither  taken  or  filed. 
By  an  act  of  25  George  3,  it  is  enacted,  that  no  attorney  shall  com- 


May  1833.]  OF  PENNSYLVANIA.  353 

[Mercer  v.  Watson  ] 

mencean  action,  or  appear  for  any  defendant  by  a  warrant  of  attorney, 
written  or  verbal,  without  delivering  a  memorandum  or  minute  to 
the  proper  officer  to  be  filed  of  record.  Yet  no  omission  or  defect  in 
the  entering  and  filing  of  this  memorandum  shall  vitiate  the  proceed- 
ings. Our  own  act  of  assembly  of  the  22d  of  May  1722,  requires 
the  attorney  for  the  plaintiff  in  every  action  to  file  his  warrant  of 
attorney  in  the  prothonotary's  office,  the  same  court  that  he  declares; 
and  the  attorney  for  the  defendant,  the  same  court  he  appears  ;  and 
provides,  that  if  they  neglect  to  do  so,  they  shall  have  no  fees,  nor  be 
suffered  to  speak  in  the  cause  until  they  file  their  warrants  respec- 
tively, evidently  intending  that  this  should  be  the  only  proper  and 
allowable  evidence  to  the  court  of  the  authority  of  the  attorney  to 
appear  in  the  suit.  But  it  is  not  the  practice,  and  I  presume  never 
has  been,  in  this  state,  to  file  or  take  warrants  of  attorney  j  still,  how- 
ever, the  attorneys  receive  their  fees  and  speak,  without  their  au- 
thority ever  being  called  in  question.  We  have  seen  by  the  case 
already  cited  from  Carthew,  that  although  it  is  error  in  England,  if 
the  guardian  be  not  in  fact  admitted  by  the  court,  yet  the  omission 
of.the  fact  on  the  roll  is  immaterial ;  so,  applying  the  reason  of  that 
case  to  the  present,  I  would  say,  it  is  of  no  consequence  that  the  ap- 
pearance of  the  guardian  is  not  entered  on  this  record,  for  if  she  had 
not  in  fact  applied,  it  would  have  been  error. 

The  cases  of  Beverly  v.  Miller,  6  MumforcFs  Rep.,  and  Priest  et  al. 
v.  Hamilton,  2  Tyler's  Rep.  support  the  conclusions  to  which  I  am  led, 
being  similar  decisions  upon  facts  much  less  forcible.  It  appears, 
that  neither  in  Virginia  nor  Vermont  have  they  any  law  with  a  pro- 
vision like  that  contained  in  the  seventh  section  of  our  act  of  27th  of 
April  171 3,  but  that  the  minor  defends  by  guardian  specially  admitted 
by  the  court.  In  Priest  et  al.  v.  Hamilton,  the  infant  had  no  guardian 
except  the  natural  guardian  his  father,  who  was  not  connected  with 
the  suit  as  a  party,  who  merely  employed  attorneys  to  defend  the 
minor  in  the  action  ;  but  who  was  not  cited  as  guardian,  nor  was  he 
appointed  or  admitted  as  guardian  by  the  court.  On  demurrer,  such 
appearance  was  nevertheless  held  to  be  sufficient.  In  Beverly  and 
Miller's  case,  the  special  admission  of  the  guardian  by  the  court  is 
recognized  as  the  regular  proceeding  in  Virginia  ;  but  where  a  suit 
against  infants  was  defended  by  their  mother,  who  had  been  appointed 
guardian  by  the  county  court,  and  her  answer  was  received  for  them, 
and  full  defence  made  under  the  sanction  and  authority  of  the  chan- 
cery court,  the  infants  were  then  held  to  be  equally  bound  by  such 
defence,  as  if  she  had  been  in  form  appointed  by  the  court  guardian 
ad  litem.  This,  it  is  true,  is  a  case  in  chancery,  but  I  do  not  find 
that  the  court  of  chancery  is  in  any  degree  less  strict  respecting  the 
admission  of  guardians  and  the  defence  of  minors,  than  the  courts  of 
common  law.  In  England,  the  rule  in  chancery  is  rigid,  that  an 
infant  must  appear  and  defend  by  guardian ;  and  must  either  come 
into  court  to  have  him  appointed,  or  there  must  be  a  commission  for 
2u 


354  SUPREME  COURT  [Lancaster, 

[Mercer  v.  Watson.] 

that  purpose.  Even  where  an  infant  was  abroad  and  could  not  be 
brought  into  court,  Lord  Eldon  refused  to  make  an  order  permitting 
his  mother  to  put  in  an  answer  as  guardian,  but  said,  that  a  com- 
mission must  go. 

There  is,  however,  another  view  of  the  proceedings  in  the  present 
case,  which  seems  to  be  conclusive,  and  with  which  I  shall  close  this 
argument.  In  a  regular  record,  the  plea  for  the  appearance  of  the 
defendant,  is  in  the  commencement  of  the  plea,  of  which  it  forms  a 
principal  part.  The  plea  in  this  ejectment  was  entered,  conformably 
to  our  practice,  in  short,  thus,  "defendants  plead  Not  guilty."  But 
pleading  in  short  is  matter  of  indulgence,  not  of  right,  for  the  ad- 
verse party  may  insist  and  the  court  may  order  that  the  plea  be 
drawn  up  at  length,  the  short  plea  or  entry  being  regarded  only  as  a 
substitute  for  the  full  and  perfect  plea.  The  counsel  having  under- 
taken to  defend  the  rights  of  the  minors  in  this  action,  as  well  as 
those  of  Jane  Watson,  were  bound  to  do  it  in  a  proper  manner,  and 
they  did  so,  by  the  plea  which  they  caused  to  be  entered  and  exerted 
themselves  to  maintain.  The  short  entry,  "  defendants  plead  Not 
guilty,"  is  equivalent  to,  and  stands  for,  the  full  and  perfect  plea 
drawn  out  in  form,  which  would  run  thus:  "and  the  aforesaid  Jane 
Watson,  in  her  proper  person  (or  by  James  Hopkins,  her  attorney), 
and  the  aforesaid  Patterson  Watson,  Hetty  Watson,  J\faria  Watson  and 
Jane  Watson,  who  are  minors  under  the  age  of  twenty-one  years,  by 
the  said  Jane  Watson,  their  guardian,  come  and  defend  the  force  and 
injury  when,  &c.  and  say  that  they  are  not  guilty  of  the  said  sup- 
posed trespasses  and  ejectment  above  laid  to  their  charge,  or  any 
part  thereof,  in  manner  and  form  as  he,  the  said  John  Mercer,  hath 
above  complained  against  them,  and  of  this  they  put  themselves 
upon  the  country,  &c."  Under  the  facts  and  circumstances  of  this 
case,  therefore,  the  short  plea  of  Not  guilty  does  in  legal  contempla- 
tion include  the  statement  of  a  regular  appearance  of  the  minors  by 
their  lawful  guardian,  and  it  does  not  lie  in  the  mouth  of  the  defend- 
ants, especially,  who  have  chosen  to  use  the  indulgence  of  pleading 
in  short,  to  object  to  this  legal,  fair  and  equitable  construction. 

To  conclude,  some  apology  might  be  deemed  necessary  for  the 
great  and  unusual  length  of  this  opinion,  were  not  a  thorough  inves- 
tigation of  the  questions  raised  upon  the  demurrer  demanded  by  the 
peculiar  circumstances  and  course  of  these  proceedings  and  by  the 
importance  of  the  questions  themselves. 

I  also  acknowledge  a  desire  of  evincing  to  the  counsel  that  I  have 
not  been  inattentive  to  their  arguments,  and  whatever  may  be  the 
ultimate  issue,  I  have  at  least  endeavoured  to  find  out  and  pursue  the 
true  path  to  the  justice  of  this  case. 

Let  judgment  be  entered  for  the  defendants  in  error. 

Errors  assigned. 

1.  There  is  error  in  the  answers  of  the  court  to  each  of  the  points 
of  law  propounded  by  the  counsel  for  the  defendants. 


May  1833.]  OF  PENNSYLVANIA.  355 

[Mercery.  Watson.] 

2.  The  verdict  is  illegal  and  out  of  the  issue,  and  the  judgment 
entered  upon  it  irregular  and  void. 

3.  There  is  error  in  rendering  judgment  on  the  demurrer  joined, 
and  in  each  and  every  part  of  the  opinion  of  the  court  on  the  general 
and  special  demurrer  in  all  the  causes  of  demurrer. 

4.  The  general  errors. 

The  opinion  of  the  Court  was  delivered  by 

GIBSON,  C.  J. — To  enable  married  women  to  convey  their  estates 
gratuitously  or  for  value,  they  were  clothed,  by  the  act  of  1770,  with 
the  capacity  of  femes  soles,  subject  to  the  concurrence  of  the  husband, 
and  the  examination  of  a  magistrate  to  guard  against  an  improper 
use  of  his  influence.  The  cause  which  induced  the  supplementary 
provision  of  1826,  is  recited  to  be,  that  conveyances  of  estates  "sold 
for  a  legal  and  sufficient  consideration,"  had  failed  of  effect,  by  reason 
of  an  opinion  entertained  by  the  courts,  that  a  specification  of  the 
particulars  was  essential  to  the  validity  of  the  separate  examination  ; 
and  hence  an  argument  that  the  benefit  of  the  provision  was  intend- 
ed for  none  but  purchasers.  Undoubtedly  a  sale  is  put  as  an  instance 
in  the  preamble;  but  the  enacting  clause  is  applicable  in  its  terms  to 
every  "  bona  fide  conveyance"  whatever.  What  may  have  been 
meant  by  these  words,  can  not  be  determined  with  certainty,  from 
the  context  or  their  intrinsic  meaning.  A  restraint  of  the  remedy 
to  bona  fide  transactions  may  have  been  intended  to  leave  the  ques- 
tion of  actual  imposition  or  constraint  an  open  one,  in  order  to  let  in 
proof  to  rebut  the  inference  of  fairness  and  free  agency,  to  be  drawn 
in  the  first  instance  from  the  naked  fact  of  acknowledgement ;  but 
the  words  certainly  have  no  relation  to  a  purchase,  nor  do  they  in- 
dicate the  presence  of  a  valuable  consideration,  or  any  thing,  perhaps, 
beside  an  untrammelled  intent  to  pass  the  estate.  Certainly  there 
was  no  design  to  clog  the  remedy  with  distinctions  between  volun- 
teers and  purchasers,  or  to  establish  one  rule  for  a  gift  to  a  parent  or 
child,  and  another  for  a  sale  which  is  but  a  gift  to  the  husband  of  the 
purchase  money  ;  for  it  can  be  of  little  value  to  the  question,  whether 
the  consequence  is  eventually  to  put  him  in  possession  of  the  estate  or 
the  price  of  it.  There  was  evidently  no  purpose  to  change  the  measure 
of  the  wife's  protection  under  the  original  act ;  the  object  plainly  being, 
to  restore  it  to  what  was  supposed. to  be  the  true  construction  of  it, 
whether  the  transaction  were  a  gift  or  a  purchase,  and  not  to  assign, 
a  double  meaning  to  the  same  words,  by  retaining  the  interpretation 
of  the  courts  as  to  the  one  class  of  grantees  and  discarding  it  as  to 
the  other.  The  effect  of  a  recital  in  the  preamble  of  a  statute  was 
shown  in  Seidenbender  v.  Charles,  4  Serg.  4-  Rawle  151,  to  be  insuf- 
ficient to  control  the  enacting  clause,  unless  to  avoid  an  unexpected 
mischief  or  a  monstrous  injustice,  neither  of  which  is  apparent  here. 

It  is  contended,  however,  that  the  act  ought  to  be  so  construed  as 
to  exclude  the  present  case,  by  reason  of  the  judgment  which  had 
passed  in  a  previous  action  for  the  defendants  :  and  for  this,  reliance 


356  SUPREME  COURT  [Lancaster, 

[Mercer  v.  Watson.] 

is  had  on  the  decision  in  Barnet  v.  Barnet,  15  Serg.  fy  Rawle  72,  in 
which,  however,  no  more  was  decided  than  that  the  abrogation  of  a 
rule  which  had  made  a  different  case,  did  not  render  a  judgment 
erroneous  pending  the  writ  of  error,  which  was  free  from  error  when 
it  was  rendered.  Certainly  the  supplemental  act  was  not  intended  to 
operate  retrospectively  on  the  regularity  of  judicial  proceedings,  its 
object  being  to  affect  the  evidence  of  title ;  and  it  would  have  been 
strange  had  this  court  so  construed  it  as  to  make  that  erroneous  by 
relation,  which  had  been  done  in  pursuance  of  its  own  decision.  The 
argument  would  be  incontrovertible,  if  a  judgment  in  ejectment  were 
conclusive  of  the  title ;  but  the  decision  had  regard  to  the  right  of 
possession,  not  as  it  appears  now,  but  as  it  appeared  then,  when  gov- 
erned by  a  rule  which  no  longer  exists.  In  a  second  ejectment,  the 
judgment  is  on  the  facts  as  they  are  presented,  however  modified  by 
intervening  rules  of  evidence,  or  the  ability  of  the  parties  to  produce 
new  proof. 

The  constitutionality  of  the  act  presents  a  subject  already  ex- 
hausted. The  question  of  its  consistency  with  the  constitution  of 
the  state,  was  put  at  rest  by  the  decision  in  Tate  v.  Stoolsfoos,  16 
Serg.  <£•  Rawle  35,  and  Barnet  v.  Barnet,  already  cited ;  nor  would 
we  have  suffered  it  to  be  argued  as  regards  the  constitution  of  the 
United  States,  were  it  not  intimated  that  the  object  of  raising  the 
point  here,  is  to  submit  it  to  the  court  of  the  last  resort.  For 
myself,  I  am  not  one  of  those  who  perceive  a  constitutional  blemish 
in  every  statute  which  impinges  on  existing  rights,  and  who  hold  the 
enactment  of  it  to  be  in  contravention  of  the  inherent  principles  of  a 
written  constitution.  Retrospective  laws  are  doubtless  unjust  in 
theory,  and  indefensible  in  practice,  where  they  are  not  employed  as 
a  corrective  of  some  intolerable  mischief;  but  where  the  rights  which 
they  are  intended  to  affect,  are  unguarded  by  a  specific  prohibition, 
the  question  of  morality,  as  well  as  of  policy,  is  for  the  determination 
of  the  legislature.  Our  inquiry,  then,  is  a  simple  one — What  are  the 
specific  limitations  which  are  imposed  on  state  legislation  by  the 
constitution  of  the  United  States  1  They  are  all  contained  in  the 
tenth  section  of  the  first  article ;  and  but  the  inhibition  of  ex  post 
facto  laws,  and  laws  impairing  the  obligation  of  contracts,  can  be 
made  to  operate  on  the  subject  of  the  present  controversy  even  by 
the  most  strained  construction. 

Ex  post  facto  laws  are  necessarily  retrospective:  they  act  on  exist- 
ing rights,  or  they  do  not  act  at  all.  Yet  the  converse  does  not  hold  ; 
for  it  seems  to  be  universally  conceded,  since  the  decision  in  Colder 
v.  Bull,  3  DalL  386,  that  retrospective  laws  are  not  necessarily  ex 
post  facto  within  the  meaning  of  the  constitution.  In  that  case,  the 
prohibition  was  held  to  be  exclusively  applicable  to  penal  laws  ;  such 
as  would  impart  criminality  to  an  act  that  was  indifferent  at  the  time, 
or  increase  the  criminality  of  an  offence  already  committed,  or  deprive 
a  prisoner  of  a  privilege  or  advantage  in  relation  to  the  measure  of 
the  proof  or  the  course  of  the  trial.  These  are  plainly  forbidden. 


May  1833.]  OF  PENNSYLVANIA.  357 

[Mercer  v.  Watson.]    »  . 

But  in  matters  of  civil  jurisprudence,  statutes  simply  retrospective 
have  not  been  disregarded  by  the  courts,  but  for  disobedience  of  some 
plain,  palpable  and  positive  mandate  of  the  constitution.  This  was 
distinctly  asserted  by  Mr  Justice  Washington,  in  delivering  the  judg- 
ment of  the  court  in  Satterlee  v.  J\fatthewson,  2  Peters  41 1,  and  shown 
to  be  entirely  consistent  with  decisions  that  had  been  thought  to  bear 
the  other  way.  In  Colder  v.  Bull,  a  distinction  was  expressly  taken 
between  ex  post  facto  and  retrospective  laws ;  the  prohibition  of  the 
former  being  protective  of  the  person,  and  the  security  of  property 
being  referable  to  the  clauses  which  forbid  a  tender  to  be  made  in 
any  thing  but  coin,  or  the  sanctity  of  contracts  to  be  violated.  These 
clauses,  it  was  justly  remarked,  would  be  redundant,  were  the  pro- 
hibition of  ex  post  facto  laws  so  largely  construed  as  to  extend  it  to 
the  protection  of  both  person  and  property ;  as  it  would  cover  the 
whole  subject.  But  taking  that  to  be  otherwise,  the  law  in  question 
carries  with  it  no  actual  pretension  of  power  to  interfere  with  vested 
rights.  The  act  of  1770  empowered  the  magistrate  to  make  the 
separate  examination,  but  omitted  to  declare  what  should  be  evidence 
of  the  fact.  The  practice  has  been  to  perpetuate  it  by  the  magis- 
trate's certificate,  in  analogy  to  the  direction  of  the  act  of  1715,  and 
this  court  had  thought  itself  bound  by  analogies  from  the  case  of  a 
fine,  to  require  the  essential  parts  of  the  transaction  to  be  specially 
set  out,  in  default  of  which,  it  was  held,  not  that  the  conveyance 
was  void,  but  that  the  grantee  had  failed  to  produce  the  requisite 
proof  of  its  execution.  By  interfering  with  the  existing  decisions,  so 
far  as  to  declare  that  a  certificate  of  the  fact  of  acknowledgement 
should  be  taken  to  import  a  compliance  with  all  the  requisitions  of 
the  law,  the  legislature  undertook  to  deal,  not  with  the  contract,  but 
the  evidence  of  it.  In  what  then  had  the  party  to  be  affected  a  vested 
right  1  If  in  nothing  but  the  quality  and  effect  of  the  evidence,  his 
right  was  possessed  of  no  peculiar  sanctity.  An  act  to  change  the 
rule  which  requires  subscribing  witnesses  to  be  called,  could  not  be 
said  to  affect  a  right,  even  so  far  as  to  incline  a  judge  towards  a  con- 
struction favourable  to  an  exemption  from  its  operation  of  instru- 
ments in  existence  at  the  time  of  its  enactment.  It  might  be  other- 
wise, were  attestation  by  subscribing  witnesses,  as  in  the  case  of  a 
will  of  land  under  the  statute  of  frauds,  an  essential  ingredient  in  the 
act  of  execution.  Here,  however,  a  specification  of  its  ingredients 
was  not  an  essential  part  of  the  acknowledgement,  or  of  the  separate 
examination,  but  a  form  and  measure  of  proof,  exacted,  not  by  the 
legislature,  but  the  courts  ;  and  in  substituting  a  different  one,  the 
legislature  dispensed  with  no  part  of  the  separate  examination  or 
acknowledgement,  either  in  substance  or  in  form ;  but  in  accordance 
with  the  common  law  maxim  omnia  rite  presumuntur,  declared  a  cer- 
tificate of  the  naked  fact  of  acknowledgement,  to  be  at  least  prima 
facie  evidence  of  every  thing  necessary  to  constitute  the  whole  fact. 
I  take  it,  then,  the  supplemental  act  divests  no  right,  and  that  it 
might  not  be  unconstitutional  if  it  did. 


358  SUPREME  COURT  [Lancaster, 

[Mercerv.  Watson.] 

Most  of  the  preceding  remarks  are  equally  applicable  to  another 
branch  of  the  argument,  whose  object  has  been  to  show  the  act  to  be 
ID  derogation  of  the  contract.  I  pass  without  remark  the  notion, 
that  it  would  impair  the  patent,  which  certainly  is  no  less  effective 
than  it  ever  was  to  pass  the  title  from  the  state.  No  contract  can  be 
impaired  by  it,  but  that  which  is  the  immediate  subject  of  its  opera- 
tion. That  it  operates  not  on  the  title,  but  the  evidence  of  it,  I  have 
attempted  to  show  ;  and  if  even  without  success,  it  is  still  sufficient 
that  its  tendency  is  not  to  impair  the  contract,  but  affirm  it.  That 
it  is  one  thing  to  annul  a  contract,  and  another  to  establish  it,  was 
determined  in  Hess  v.  JVurts,  4  Serg.  <$•  Rawle  356,  in  which  a  statute 
passed  in  maintenance  of  an  action  on  the  notes  of  certain  unincor- 
porated banks,  was  sustained,  though  the  effect  of  it  was  to  set  up  a 
contract  which  had  been  declared  a  nullity.  And  in  Satterlee  v. 
•Matthewson,  1 6  Serg.  <$•  Rawle  1 69,  a  void  lease  was  validated  by  a 
statute,  which  was  determined  to  be  constitutional,  though  operating 
in  the  particular  instance  on  a  case  adjudicated.  I  rely  on  that  case 
with  peculiar  confidence,  not  only  because  it  is  in  all  respects  what 
the  argument  has  assumed  the  case  at  bar  to  be,  but  because  the 
decision  of  it  has  been  affirmed  in  all  its  bearings,  by  the  supreme 
court  of  the  United  States,  where  the  distinction  between  the  de- 
struction and  the  establishment  of  a  contract  was  taken  and  sustained. 
Even  Mr  Justice  Johnson,  who  dissented  as  to  that,  concurred  in 
maintaining  the  competency  of  the  legislature  to  declare  the  law 
retrospectively,  so  as  to  revise  and  overrule  the  decisions  of  the  judi- 
ciary, a  principle  broad  enough  to  cover  the  whole  case.  After  a 
decision  of  the  very  point  in  terms  so  positive,  it  is  idle  to  pursue  the 
inquiry  ;  and  I  dismiss  it  to  turn  again  to  matters  of  domestic  and 
exclusive  jurisdiction. 

Nothing  can  be  more  purely  technical,  than  the  exception  to  the 
record  of  the  writ  of  error  coram  vobis.  That  the  supposed  clerical 
slip  in  recording  the  defendants'  appearance  deprived  them  of  any 
protection  or  advantage  they  would  otherwise  have  had,  is  not  pre- 
tended, and  the  exception  is  therefore  entitled  to  no  peculiar  favour. 
In  the  application  of  rules  of  practice,  respect  is  to  be  had,  not  only 
to  the  general  inadvertence  of  the  profession  to  matters  of  this  sort, 
but  to  the  inexperience  of  the  prothonotaries,  which  frequently  com- 
pels us  to  dispense  with  the  form,  in  order  to  preserve  the  substance 
of  justice.  Our  records  are  seldom,  if  ever,  put  into  form,  and  the 
evidence  of  our  judicial  proceedings  is  suffered  to  rest  in  minutes  or 
short  entries,  which  are  in  truth  but  the  material  from  which  a 
record  is  constructed  elsewhere.  In  the  case  before  us,  the  only  evi- 
dence of  an  appearance  at  all,  is  the  customary  entry  of  the  names 
of  counsel  in  the  margin  of  the  docket ;  by  which,  however,  the  pro- 
thonotary  would  have  been  authorized  to  make  up  the  record  for  the 
writ  of  error  coram  vobis,  so  as  to  show,  according  to  the  truth  of  the 
fact,  that  the  infant  defendants  had  actually  appeared  and  made  de- 
fence by  their  guardian,  who  was  also  a  co-defendant;  or  the  defect, 


May  1833.]  OF  PENNSYLVANIA.  359 

[Mercer  v.  Watson.] 

being  a  clerical  one,  might  have  been  amended  even  after  error 
brought.  An  application  to  amend,  therefore,  would  have  set  the 
matter  right,  or  the  plaintiff  instead  of  pleading  specially  to  the 
assignment,  might  have  put  the  truth  of  it  in  issue.  Instead,  how- 
ever, of  having  recourse  to  the  record  for  its  substance  and  effect,  he 
has  put  his  case  on  the  facts  contained  in  the  special  plea.  But 
these  are  precisely  what  might  have  been  made  to  result  from  the 
record  without  pleading ;  the  entry  of  the  appearance,  like  the  memo- 
randum of  a  judgment,  being  in  point  of  effect  what  it  ought  to  be 
in  point  of  form.  The  only  question  then  is,  whether  this  legal 
effect  can  be  shown  in  a  case  like  the  present,  by  plea  and  averment. 
I  know  of  no  principle  which  forbids  it,  especially  in  a  proceeding 
where  an  inference  of  error,  depending  on  extrinsic  facts,  may  be 
rebutted  by  other  facts.  Perhaps,  after  all,  to  plead  specially  was 
the  better  course.  It  is  unnecessary  to  go  into  a  more  particular 
examination  of  this  point,  the  bearing  of  the  subject  having  been 
accurately  explored  by  the  judge  who  ruled  the  cause  below,  whose 
conclusions  are  sustained  both  by  reason  and  authority. 

The  remaining  errors  require  but  a  passing  notice.  It  is  impossi- 
ble to  discover  why  a  verdict  could  not  be  rendered  in  favour  of  the 
surviving  executor,  and  none  has  been  shown.  As  to  the  notion 
that  a  verdict  may  be  available  for  some  purposes  though  set  aside, 
it  is  sufficient  to  say  that  the  act  is  applicable  to  none  but  a  verdict 
which  is  final  in  the  cause ;  else  two  verdicts  in  the  same  action, 
though  set  aside  for  misdirection  or  reversed  by  writ  of  error,  would 
constitute  an  independent  title  at  the  third  trial.  It  has  also  been 
suggested,  that  the  defendants  have  acquired  title  by  the  statute  of 
limitations.  No  part  of  the  evidence  is  on  our  paper  books,  and  we 
would  therefore  be  unable  to  form  an  opinion  on  the  subject,  were  it 
even  proper  to  express  one ;  but  we  could  not  in  any  event  decide,  as 
a  matter  in  the  cause,  what  was  not  the  subject  of  decision  below. 
A  bill  of  exceptions  removes  not  the  whole  cause  for  revision  on  the 
merits,  but  a  specific  point  decided  by  the  court  and  excepted  to  by 
the  party.  Defence  was  not  taken  on  the  statute  of  limitations,  or 
at  least  no  point  in  regard  to  it  was  made  a  subject  of  exception,  and 
therefore  none  such  is  for  inquiry  here. 

Judgment  affirmed. 


360  SUPREME  COURT  [Lancaster, 


Bolton  against  Colder  and  Wilson, 

A  stage  coach  passing  upon  a  public  highway,  is  protected  by  an  act  of  congress 
from  wilful  and  wanton  obstruction  or  delay ;  but  in  every  other  respect  they  are  on  a 
footing  with  all  other  carriages. 

A  traveller  may  use  the  middle  or  either  side  of  a  public  road  at  his  pleasure,  and 
without  being  bound  to  turn  aside  for  another  travelling  in  the  same  direction,  pro- 
vided there  be  convenient  room  to  pass  on  the  one  hand  or  on  the  other. 

Parol  proof  of  a  particular  custom  should  not  be  suffered  to  control  the  general  law 
of  the  land. 

THIS  was  an  action  of  trespass  on  the  case,  against  the  defendants 
as  the  proprietors  of  the  Reading  and  Harrisburg  stage  coach,  tried 
before  Mr  Justice  Rogersy  at  a  circuit  court  for  Dauphin  county,  the 
16th  of  April  1833. 

The  plaintiff  called  Henry  Schantz,  who  testified  as  follows : 
I  was  a  passenger  in  the  stage  on  the  4th  February  1832.  Stop- 
ped at  Koorfs  tavern,  Bolton  was  before  us,  coming  to  Harrisburg ; 
the  stage  overtook  Bolton,  he  turned  out  to  the  left  hand  coming  up; 
Bolton  was  riding  in  a  dearborn  wagon ;  Philip  Ressel,  the  driver, 
drove  against  Bolton's  wagon  and  upset  it ;  he  drove  on  about  a 
quarter  of  a  mile  without  stopping.  We  then  got  out  of  the  stage ; 
we  told  him  to  stop,  that  the  man  could  not  get  out,  he  was  lying 
in  the  wagon.  Nagle,  Dubbs  and  Karch  went  back ;  we  took  him 
out,  righted  his  wagon  and  then  put  him  in  again.  Dubbs  got  in 
with  Bolton,  and  drove  the  wagon  to  Harrisburg.  Bolton  could  not 
rise  or  help  himself ;  appeared  to  suffer  much  pain ;  complained  that 
his  leg  was  broken.  I  was  looking  out  of  the  stage,  and  saw  all  ; 
Bolton  had  turned  out  as  far  as  he  could  without  upsetting  himself, 
more  than  half  the  road,  almost  the  whole  road  ;  Philip  did  not  turn 
out  at  all ;  he  struck  the  wheel  of  Bolton ;  the  stage  could  have 
passed  easily  to  the  right.  It  was  raining  and  snowing.  I  was  look- 
ing out  of  the  window  of  the  stage  to  see  how  far  Bolton  was  ahead 
of  the  stage ;  the  hind  wheel  of  the  stage  struck  the  wagon  and 
turned  it  over ;  there  was  room  enough  for  two  stages  to  pass  to  the 
right  of  Bolton's  wagon ;  Philip  kept  straight  on  without  turning  to 
either  side ;  he  drove  the  whole  way  at  a  pretty  fast  trot.  It  was  on 
the  turnpike  from  Harrisburg  to  Lebanon,  about  three  miles  from 
Harrisburg.  When  I  looked  out,  Bolton  was  about  four  or  five  yards 
before  the  stage ;  Nagle  and  I  looked  out  at  the  same  time ;  stage 
not  open  before,  the  curtains  were  all  down ;  three  seats  in  the  stage ; 
I  sat  on  the  hind  seat ;  Boltorfs  wagon  was  covered,  don't  know 
whether  open  or  closed  behind ;  I  don't  know  that  the  stage  horses 
were  frightened ;  I  can't  say  whether  I  went  down  the  hill  or  up, 
after  we  left  the  stage  to  go  back.  We  all  told  the  driver  to  stop ; 


May  1833.]  OF  PENNSYLVANIA.  361 

[Bolton  v.  Colder  and  Wilson.] 

when  I  first  saw  Bolton  he  was  on  the  left  side  of  the  road,  the  stage 
struck  the  hind  wheel  of  Bolton's  wagon. 

We  told  Philip  more  than  once  to  stop ;  cannot  say  whether  he 
heard  us ;  there  was  snow  enough  on  the  ground  to  mark  the  track 
of  the  stage  and  wagon,  I  looked  at  the  tracks  when  we  went  back; 
we  discovered  that  Bolton's  wagon  had  turned  out  to  the  left  and 
that  the  stage  had  not ;  we  looked  on  purpose  to  see  whether  the 
stage  had  turned  out,  we  went  back  four  or  five  steps  to  see  ;  from 
the  tracks  of  Bolton's  wagon  we  could  see  he  was  turning  to  the 
left  all  the  while ;  we  looked  out  of  the  stage  on  the  side  next  to 
Bolton;  Bolton  could  not  have  got  up  without  assistance ;  it  hap- 
pened in  the  evening. 

Doctor  T.  Dean  proved  as  follows : 

I  was  called  to  see  Mr  Bolton  about  the  3d  or  4th  of  February.  I 
found  him  sitting  in  his  wagon  ;  had  not  been  removed  ;  complained 
of  very  severe  pains  ;  directed  him  to  be  removed  up  stairs  at  Hen- 
zey's  ;  found  difficulty  in  getting  him  out  of  the  wagon  ;  found  a  frac- 
ture of  the  neck  of  the  thigh  bone  ;  considered  a  difficult  case ;  he 
was  considerably  bruised  and  complained  of  pain  in  the  back ;  con- 
tinued to  visit  him  until  the  1st  of  March  following,  I  then  ceased  to 
make  entries  in  my  book ;  the  bones  were  replaced ;  the  apparatus 
had  to  be  removed,  owing  to  severe  pain  he  complained  of  in  the  leg 
and  back ;  severe  constitutional  diseases  followed ;  high  fever,  pain 
in  the  head  and  inflammation  of  the  kidneys ;  he  had  been  subject 
to  a  chronic  disease  of  the  kidneys  before.  It  has  been  a  question 
whether  a  fracture  in  that  part  will  ever  unite,  now  settled  that  it 
may.  He  is  now  lame,  and  I  think  it  probable  he  may  continue  to 
be  a  cripple  through  life  [this  testimony  objected  to  by  defendants' 
counsel — admitted  and  point  reserved].  He  will  be  subject  to  pain 
from  changes  of  weather,  this  is  the  case  in  all  fractures ;  it  was 
necessary  to  administer  large  doses  of  opium  to  allay  the  pain.  Mr 
Bolton  was  a  very  impatient  man ;  I  have  an  indistinct  recollection 
of  his  discharging  bloody  urine.  I  think  60  dollars  a  moderate  com- 
pensation for  my  services;  he  was  a  troublesome  patient,  sent  for  me 
often  when  not  necessary,  and  often  in  the  night  time. 

It  is  my  opinion  that  a  fracture  of  this  bone  may  unite ;  I  think  in 
this  case  it  has  united ;  lameness  is  not  a  necessary  consequence  of 
a  fracture  of  this  kind  ;  I  have  not  seen  Mr  Bolton  since  I  ceased  to 
attend  him ;  I  observe  he  halts  a  little  in  his  gait  at  present. 

I  have  made  an  examination  of  Mr  Bolton's  leg  this  morning,  and 
find  it  shortened  by  accurate  measurement  three  fourths  of  an  inch  ; 
the  calf  of  the  leg  appears  more  swollen  than  the  sound  one. 

The  plaintiff  then  gave  further  evidence  of  these  facts  and  closed. 

The  defendants  then  called  Philip  Ressel,  the  driver,  who  testified 
as  follows. 

I  was  the  driver  of  the  stage  on  that  day  from  Hummelstown  to 
Harrisburg ;  I  stopped  at  Kuhn's  to  water  ;  Bolton  drove  by  ;  I  then 
started  and  came  up  with  him ;  when  I  came  within  thirty  or  forty 
2  v 


362  SUPREME  COURT  [Lancaster, 

[Bolton  T.  Colder  and  Wilson.] 

yards  of  him  he  looked  back,  he  then  kept  on,  and  I  went  on  at  a 
regular  gait  until  I  got  within  fifteen  or  twenty  yards  of  him,  he 
then  looked  back  a  second  time,  gave  his  horse  the  whip,  and  run 
him  the  canter,  still  in  the  middle  of  the  road  ;  I  turned  out  to  the 
left,  thought  to  pass  him  on  the  left,  and  let  him  have  the  middle  of 
the  road  ;  when  I  got  up  foment  his  wagon,  he  turned  out  of  the 
middle  of  the  road  to  the  left  side,  to  prevent  me  from  passing ;  I 
was  then  obliged  to  pull  the  front  horses'  reins  so  as  to  turn  them  to 
the  right,  to  pass  him  to  the  right ;  the  hind  wheel  being  in  a  rut 
slid  along,  and  caught  the  tire  of  the  hind  wheel  of  the  wagon  and 
turned  it  over  ;  the  wagon  turning  over  frightened  my  horses,  and 
I  could  not  check  them  until  I  got  on  the  face  of  the  hill,  and  was 
then  obliged  to  go  on  to  the  top  of  the  hill  before  I  could  stop.  It 
happened  at  the  foot  of  a  hill.  I  then  stopped,  and  told  the  passen- 
gers to  go  back  and  see  whether  the  man  was  hurt ;  such  an  acci- 
dent had  never  happened  before  ;  they  went  back,  took  him  out  of 
the  wagon,  and  set  it  up.  I  could  have  passed  to  the  left  of  Mr 
Bolton  without  any  injury,  if  he  had  not  turned  in  on  me  ;  the  front 
wheels  of  the  stage  passed  free  of  the  wagon,  may  be  two  feet ;  just 
before  the  stage  struck  the  wagon  his  horse  made  a  kind  of  a  halt. 
It  was  two  hundred,  or  two  hundred  and  fifty  yards  from  the  place 
where  the  wagon  was  upset  to  where  I  stopped  the  stage.  I  could 
not  stop  the  horses  on  the  hill  with  safety  to  the  passengers.  I  did 
not  hear  the  passengers  call  to  me  to  stop. 

I  was  employed  by  Colder  and  Wilson ;  I  generally  carry  a  horn  ; 
Bolton  was  in  the  middle  of  the  road  ;  there  was  as  much  room  on 
the  one  side  as  on  the  other  ;  when  I  found  h«  was  passing  to  the 
left,  I  bore  up  my  horses  as  soon  as  I  could.  When  I  came  to  town 
I  told  Mr  Colder  of  the  accident ;  he  told  me  I  ought  to  go  and  see 
Bolton.  I  did  not  go.  The  passengers  told  me  the  same  evening 
they  thought  his  leg  was  broken.  I  told  the  manner  it  happened  to 
Mr  Pujfington  the  same  evening. 

The  defendants  gave  also  some  evidence  of  a  special  custom  to 
regulate  the  passing  of  carriages  on  turnpike  roads,  &c.  :  when  his 
honour  summed  up  the  evidence,  in  pointed  terms  in  favour  of  the 
plaintiff;  and  the  jury  found  for  the  plaintiff  1 200  dollars  damages. 

On  apppeal  to  the  supreme  court  in  bank,  the  cause  was  argued 
for  the  plaintiff,  by  Fisher  and  Krause ;  and  for  the  defendants,  by 
Weidman  and  JVorro. 

The  opinion  of  the  Court  was  delivered  by 

GIBSON,  C.  J. — Among  the  reasons  assigned  for  a  new  trial,  there 
is  but  one  which  deserves  to  be  noticed  ;  and  there  is  so  little  even 
in  it,  that  were  it  not  necessary  to  correct  an  apparent  misapprehen- 
sion on  the  subject  of  it,  and  in  a  matter  of  very  general  concern,  it 
would  not  be  made  a  subject  of  remark.  The  movement  of  carriages 
passing  on  our  turnpike  roads  in  opposite  directions,  is  regulated  by 


May  1833.]  OF  PENNSYLVANIA.  363 

[Bolton  v.  Colder  and  Wilson.] 

special  enactment ;  but  there  is  no  positive  law  to  regulate  the  pass- 
ing of  those  who  are  travelling  in  the  same  direction.  The  defend- 
ants gave  evidence  of  its  being  a  custom  in  the  latter  casej  for  the 
leading  carriage  to  incline  to  the  right,  the  other  making  the  transit 
at  the  same  time  by  the  left ;  whence  it  was  attempted  to  be  shown, 
that  the  injury  suffered  by  the  plaintiff,  had  been  occasioned  by  his 
own  neglect  of  this  custom,  which  was  said  to  have  acquired  the 
consistence  of  a  law,  but  which  was  very  properly  exploded  by  the 
court.  Nothing  should  be  more  pertinaciously  resisted,  than  these 
attempts  to  transfer  the  functions  of  the  judge  from  the  bench  to  the 
witness's  stand,  by  evidence  of  customs  in  derogation  of  the  general 
law,  that  would  involve  the  responsibilities  of  the  parties  in  rules, 
whose  existence,  perhaps,  they  had  no  reason  to  suspect  before 
they  came  to  be  applied  to  their  rights.  If  the  existence  of  a  law  be 
so  obscure,  as  to  be  known  to  the  constitutional  expositors  of  it  only 
through  the  evidence  of  witnesses,  it  is  no  extravagant  assumption 
to  take  for  granted,  that  the  party  to  be  affected  was  ignorant  of  it 
at  the  time  when  the  knowledge  of  it  would  have  been  most  mate- 
rial to  him  ;  and  to  try  a  man's  actions  by  a  rule  with  which  he  had 
not  an  opportunity  to  become  acquainted  beforehand,  is  the  very 
worst  species  of  tyranny.  The  probability  of  actual  ignorance  in 
respect  to  this  particular  custom,  is  greater  than  in  respect  to  almost 
any  other  that  can  be  imagined,  as  the  traveller  might  reasonably 
suppose  the  whole  law  of  the  road  to  be  comprised  in  the  statutory 
admonition  that  meets  the  eye  at  every  gate  and  bridge.  The  use 
of  parol  proof  has  been,  to  say  the  least,  sufficiently  extended  by 
suffering  it  to  control  the  private  written  laws  which  individuals  estab- 
lish between  themselves  for  the  regulation  of  their  rights  in  particular 
transactions,  without  suffering  it  to  control  the  general  law  of  the 
land.  The  judge,  therefore,  did  a  valuable  service  to  the  stability  of 
the  law,  by  freeing  the  cause  from  a  matter  so  entirely  foreign  to  it. 
It  remains,  therefore,  to  be  seen,  whether  the  rule  laid  down  by  him  is 
founded  in  the  principles  of  justice  and  reason.  It  was  not  pre- 
tended that  the  mail  coaches  are  entitled  to  precedence,  or  the 
enjoyment  of  any  particular  privileges.  They  are  indeed  protected 
by  an  act  of  congress  from  being  wilfully  and  wantonly  obstructed 
or  delayed  ;  but  in  every  other  respect  they  are  on  a  footing  with  all 
other  carriages ;  and  it  is  right,  perhaps,  that  it  should  be  so.  Ex- 
perience proves,  that  the  drivers  of  them  are  not  the  most  eligible 
depositories  of  power  ;  and  there  are  few  who  have  not  to  do  with 
them,  either  as  passengers  or  travellers.  The  public,  consequently, 
has  an  important  interest  in  having  them,  in  common  with  the  dri- 
vers of  other  carriages,  held  strictly  to]  the  measure  of  their  rights  ; 
and  this  can  be  done  only  by  making  their  employers  sureties  for 
their  good  conduct  as  far  as  the  law  permits,  and  liable  for  their 
acts.  They  are  seldom  of  sufficient  estate  to  respond  in  damages  to 
any  considerable  extent ;  and  to  treat  them  as  exclusively  liable, 
would  in  most  instances  be  a  denial  of  redress.  With  these  consid- 


364  SUPREME  COURT  [Lancaster, 

[Bolton  v.  Colder  and  Wilson.] 

erations  in  view,  the  judge  stated  the  law  to  be,  that  a  traveller 
may  use  the  middle,  or  either  side  of  the  road  at  his  pleasure,  and 
without  being  bound  to  turn  aside  for  another  travelling  in  the  same 
direction,  provided  there  be  convenient  room  to  pass  on  the  one 
hand,  or  on  the  other  :  and  why  should  it  be  otherwise  *?  The  law 
to  regulate  the  deflection  of  those  who  are  travelling  in  opposite 
directions,  was  designed  for  the  specific  case  mentioned  in  it ;  the 
object  being,  to  avoid,  by  a  preconcerted  movement,  the  collision 
which  might  otherwise  ensue  from  the  mutual  misapprehension  of 
intention,  frequently  observable  between  foot  passengers.  But  this 
uncertainty  is  productive  of  no  collision  between  carriages  travelling 
in  the  same  direction,  and  the  principle  of  the  enactment  is,  there- 
fore, not  to  be  extended  to  it.  It  is  certainly  but  reasonable,  that  the 
traveller,  to  be  accommodated,  should  be  at  the  pains  to  give  his 
carriage  the  proper  direction  to  enable  him  to  profit  by  his  superior 
speed  ;  and  if  there  be  convenient  room  to  pass  on  any  particular 
part  of  the  road,  he  ought  not  to  complain.  If  there  be  not,  it  is 
doubtless  the  duty  of  the  other  to  afford  it,  on  request  made,  by 
yielding  him  an  equal  share  of  the  road,  if  that  be  adequate  and 
practicable  ;  if  not,  the  object  must  be  deferred  till  the  parties  arrive 
at  ground  more  favourable  to  its  accomplishment.  Should  the 
leading  traveller  refuse  to  comply,  he  would  be  answerable  for  it. 
But  to  effect  the  passage  by  a  forcible  collision  with  him,  is  not  to 
be  justified,  redress  being  demandable  only  by  due  course  of  law. 
Conformably  to  this,  it  was  impossible  to  doubt  that  the  injury 
entitled  the  plaintiff  to  his  action  ;  and  as  it  clearly  appeared  to  have 
been  the  effect  of  negligence,  the  verdict  was  properly  rendered  for 
such  damages  as  will  probably  induce  the  proprietors  of  mail  coaches 
to  take  care  that  their  drivers  be  more  attentive  to  the  rights  of 
others  for  the  future. 
Judgment  affirmed. 


OF  PENNSYLVANIA,  365 


Boyd  against  Boyd. 

The  admission  of  irrelevant  testimony  by  the  circuit  court  is  no  cause  for  a  new 
trial,  unless  it  appears  to  have  done  an  injury  to  the  party. 

Administrators  who  enter  into  a  joint  and  several  administration  bond,  and  file  a 
joint  inventory,  are  jointly  and  severally  liable  for  the  whole  amount  of  the  personal 
property  of  the  intestate. 

Interest  beyond  the  penalty  of  a  bond  may  be  recovered  in  a  court  of  law  in  the 
shape  of  damages. 

APPEAL  from  the  circuit  court  of  Lancaster  county,  held  by  Chief 
Justice  Gibson. 

This  was  an  action  of  debt  on  a  bond  of  Jlmos  Slaymaker  and 
Henry  F.  Slaymaker,  executors  of  'James  Boyd  deceased,  against 
James  Boyd,  John  Boyd  and  Samuel  Boyd,  administrators  of  William 
Boyd.  A  statement  of  the  facts,  other  than  that  which  is  contained 
in  the  opinion  of  the  court,  is  not  necessary  to  the  understanding  of 
the  principles  decided. 

Champneys  and  JVorm,  for  appellants. 
Montgomery  and  Jenkins,  for  appellees. 

The  opinion  of  the  Court  was  delivered  by 

ROGERS,  J. — This  was  an  action  of  debt  on  bond,  in  which  the 
defendants  relied  on  three  grounds  of  defence:  First.  Want  of  assets. 
Second.  That  the  testator  agreed  to  release  the  bond  and  take  Co- 
Jonel  James  Boyd,  the  son  of  William  Boyd,  as  a  substitute  for  it. 
Thirdly.  That  the  bond  had  been  altered,  in  a  material  part,  when 
in  the  possession  of  the  plaintiffs,  after  it  was  executed  and  delivered. 

The  plaintiffs  offered  in  evidence,  a  bond  of  James  Boyd  to  Samuel 
Boyd,  with  this  indorsement.  "  The  within  bond  given  to  secure 
the  judgment  of  a  debt  on  bond,  due  to  the  estate  of  James  Boyd  de- 
ceased, for  which  the  said  Samuel  Boyd  is  also  liable,  but  which  is 
the  proper  debt  of  the  said  James  Boyd,  amounting  to  about  2000 
dollars."  They  also  offered  the  record  of  a  judgment,  in  the  suit 
of  Jacob  Reaper  v.  Samuel  Boyd.  The  record  contains  this  entry : 
debt  1400  dollars — judgment  entered  the  3d  of  May  1825,  on  a 
"Bond,  in  the  above  penalty,  on  a  judgment  bond,  dated  the  1st  of 
April  1825,  conditioned  for  the  payment  of  a  certain  bond  or  obliga- 
tion, given  by  the  late  father  of  Samuel  Boyd,  to  a  certain  James 
Boyd  late  deceased,  for  about  2200  dollars,  including  interest;  and 
also  conditioned  that  he  shall  keep  the  said  Jacob  Reaper  free  from 
all  charges  and  costs,  and  shall  pay  all  charges  and  expenses,  &c." 
The  evidence  was  opposed,  because  it  was  irrelevant ;  and  this  was 
the  only  ground  on  which  the  counsel  relied  at  the  trial,  for  although 
when  the  bond  was  offered,  they  requested  the  subscribing  witnesses  to 


366  SUPREME  COURT  [Lancaster, 

% 

[Boyd  v.  Boyd.] 

be  called,  yet  when  it  was  withdrawn  and  the  record  substituted  for  it, 
this  objection  was  abandoned.  This  appears  from  the  paper  book, 
and  also  from  the  report  of  the  Chief  Justice,  who  tried  the  cause  at 
the  circuit.  On  a  motion  for  a  new  trial,  it  has  been  repeatedly 
held,  that  the  admission  of  irrelevant  testimony  is  no  cause  of  a  re- 
hearing, unless  it  appears  to  have  worked  manifest  injury  to  the 
party.  And  this  it  is  difficult  to  show,  particularly  when  the  judge 
before  whom  the  cause  was  tried  is  satisfied  with  the  verdict.  It 
cannot  be  supposed,  that  the  jury  paid  any  attention  to  testimony 
which  had  no  bearing  on  the  issue  trying.  A  motion  for  a  new  trial 
is  an  application  to  the  sound  discretion  of  the  court,  and  is  not  gov- 
erned by  the  strict  technical  rules  applicable  to  a  writ  of  error.  And 
in  this  respect  this  mode  of  review,  which  is  made  with  a  knowledge 
of  all  the  testimony,  is  supposed  to  have  a  decided  advantage.  To 
retry  a  cause  when  there  is  no  injury  to  redress,  would  be  not  only 
useless,  but  vexatious  and  expensive.  But  let  us  examine  whether 
the  testimony  was  irrelevant.  The  defendants  relied  on  want  of 
assets;  they  also  contended  the  testator  had  released  the  debt.  The 
bond  of  James  Boyd  to  Samuel  Boyd,  and  also  the  judgment  to 
Reaper,  was  evidence  having  some  bearing  on  both  facts.  The 
weight  of  evidence  is  not  material.  The  bond  and  judgment  have 
direct  reference  to  the  debt  on  which  suit  is  brought ;  and  certainly 
furnish  evidence,  from  which  an  argument  may  be  drawn,  that  there 
was  an  existing  debt  due  from  the  estate  of  William  Boyd  to  James 
Boyd;  that  whatever  arrangement  may  have  been  made  as  to  the 
manner  of  payment  between  themselves,  yet  that  the  testator  never 
relinquished  his  lien  against  the  estate  of  the  father.  And  this  argu- 
ment would  derive  additional  weight  from  the  fact,  that  it  would  be 
against  probability  that  the  testator,  who  had  a  lien  on  the  whole 
estate  of  the  father,  would  be  willing  to  give  up  the  claim,  for  the 
personal  promise  of  the  son,  who  had  got  but  a  part  of  the  estates. 
But  it  is  said  that  Samuel  Boyd  assumed  the  payment  of  the  debt; 
that  this  was  such  a  promise  as  would  support  an  action  by  the  ex- 
ecutors, to  whose  use  it  would  enure,  and  that  this  would  be  a  bar 
of  the  suit.  If  this  be  so,  it  was  evidence  clearly  in  favour  of  the 
defendants,  of  which  he  cannot  in  justice  complain.  On  the  con- 
trary, he  should  have  desired  the  admission  of  the  testimony,  and 
have  then  prayed  the  direction  of  the  court,  that  it  was  a  bar  to  the 
plaintiff's  demand.  But  the  answer  to  this  position  is  readily  given. 
The  bond  was  given  without  the  concurrence  of  the  plaintiff.  He 
was  no  party  to  the  arrangement.  How  then,  can  his  rights  be  af- 
fected *?  And  besides,  even  if  it  were  done  with  his  express  assent, 
yet  it  would  be  an  accumulative  remedy;  for  there  is  no  evidence  to 
show,  that  the  testator  relinquished  the  claim  against  the  estate  of 
William  Boyd. 

This  view  of  the  case  disposes  of  the  objection  to  the  admission  of 
the  plaintiff's  testimony.  It  remains  now  to  consider  whether  the 
court  erred  in  rejecting  the  defendants'  testimony.  The  defendants 


May  1833.]  OF  PENNSYLVANIA.  367 

* 

[Boyd  v.  Boyd.] 

offered  to  prove  that  at  the  time  of  the  decease  of  William  Boyd, 
Samuel  Boyd,  one  of  the  defendants,  was  unmarried,  and  remained 
so  for  two  years  ;  during  which  time,  he  was  a  wagoner  on  the  road. 
That  the  personal  estate  in  the  inventory,  except  the  few  articles 
admitted  in  his  plea,  passed  into  the  hands  of  the  other  administra- 
tors, who  transacted  the  business  of  the  estate ;  and  they  further 
offered  to  show,  that  they  were  the  acting  administrators.     The  ob- 
ject of  the  evidence  was  to  ascertain  the  assets  which  were  actually 
received  by  Samuel,  one  of  the  administrators,  with  a  view  of  fixing 
the  amount  of  his  liability.     The  defendants  cannot  insist,  that 
where  there  are  co-administrators,  each  is  liable  only  to  the  amount 
which  came  to  his  hands.     That  this  is  true,  in  regard  to  executors, 
who  give  no  bonds,  and  to  trustees,  is  settled  by  a  train  of  authori- 
ties which  puts  the  law  beyond  dispute.     But  does  this  rule  hold 
where  letters  of  administration  are  granted  to  two  or  more  jointly, 
where  they  enter  into  joint  bonds  and  where  they  file  a  joint  inven- 
tory'?   Letters  of  administration  were  granted  by  the  register,  to 
James,  John  and  Samuel  Boyd.     They  entered  into  a  joint  and 
several  bond,  with  James  Hamilton  and  John  Robinson  as  sureties. 
The  bond  is  on  this  condition,  that  they,  the  administrators,  shall 
make  or  cause  to  be  made  a  true  and  perfect  inventory,  &c.,  and 
on  this  further  condition,  that  they  well  and  truly  administer  the 
goods  and  chattels,  and  credits  of  the  estate.     The  administrators 
filed  a  joint  inventory  of  the  goods  and  chattels  belonging  to  the 
estate,  amounting  to  1713  dollars  and  73  cents.     The  suit  is  brought 
against  all  the  administrators,  two  of  whom  only  were  served  with 
process  ;  as  James  Boyd,  one  of  the  two  served:,  is  dead,  the  suit  is 
prosecuted  against  Samuel  Boyd.     The  defendants  filed  a  special 
plea,  of  which  I  have  searched  in  vain  for  a  precedent.     The  case 
of  Harcourt  v.  Proud,  1  Saund.  333,  from  which  the  plea  appears  to 
have  been  taken,  bears  no  resemblance  to  the  plea  filed.     That  was 
the  form  of  a  plea,  where  the  executor  retained  a  portion  of  the 
assets,  to  satisfy  a  debt  due  to  himself.     Where  an  administrator 
has  assets,  but  not  sufficient  to  satisfy  all  the  debts,  he  can  protect 
himself  only  by  pleading  a  special  plene  administravit  of  all  beyond  a 
sum  sufficient  to  satisfy  debts  of  a  higher  nature,  and  to  pay  the  other 
debts  of  equal  degree,  their  pro  rata  proportion.    Shaw  v.  M1  Cameron, 
11  Serg.  <£•  Rawle  256.     And  if  no  assets  whatever  came  to  his 
hands,  the  administrators  would  be  protected  by  the  plea  of  plene 
administravit;  inasmuch  as  upon  that  issue,  it  lies  on  the  plaintiffs  to 
prove  affirmatively,  that  the  defendants  had  assets.     And  in  proof  of 
assets,  the  plaintiffs  may  give  in  evidence  the  inventory  of  the  per- 
sonal estate  of  the  deceased ;  and  when  such  evidence  is  given,  it  is 
sufficient  to  throw  the  onus  on  the  executor  or  administrator,  to 
show  how  he  disposed  of  the  goods  and  money  specified  in  the 
inventory.     The  proper  plea  was  plene  administravit ;  and  on  the 
inventory  being  given  in  evidence,  it  was  incumbent  on  Samuel  to 
show  the  disposition  which  had  been  made  of  the  property  mentioned 


368  SUPREME  COURT  [Lancaster, 

•  % 

[Boyd  v.  Boyd.] 

in  the  inventory.  But  this  he  evades ;  and,  instead,  offers  to  show  the 
property  which  came  to  his  hands,  with  the  additional  fact,  that  hia 
brothers,  and  not  himself,  were  the  acting  administrators.  If  we 
suppose  that  James  and  John  had  committed  a  devastavit,  and  were 
insolvent,  the  effect  of  the  testimony  would  be,  on  the  grounds 
assumed  in  the  argument,  to  throw  the  whole  responsibility  on  the 
sureties.  For  the  defendants'  counsel  contend,  that  the  sureties  are 
bound,  that  each  administrator  will  well  and  truly  administer  the 
assets,  which  may  be  actually  received  by  him  ;  and  that  this  is  the 
extent  of  the  liability  of  the  administrators.  They  are  unwilling  to 
admit  his  liability  even  as  surety.  If,  then,  a  suit  is  brought  upon 
the  administration  bond,  the  co-administrator  can  be  subjected  only 
to  the  amount  he  has  received,  although  the  creditors  may  recover 
the  value  of  all  the  assets,  which  come  to  the  hands  of  all  or  either 
of  the  administrators,  from  the  sureties.  But  the  true  rule  is  (and 
I  am  at  a  loss  to  see  how  a  different  construction  can  be  given  to  the 
contract),  that  on  a  joint  administration,  the  administrators  become 
responsible  for  each  other  as  principals.  The  sureties  are  bound, 
that  they  as  principals,  without  regard  to  who  is  and  who  is  not  the 
acting  administrator  or  recipient  of  the  money,  will  faithfully  ad- 
minister the  estate.  A  different  view  of  the  case  would  be  not  only 
against  sound  policy,  but  unjust.  It  frequently  happens  that  sure- 
ties enter  into  the  bond,  on  the  faith  of  the  administrator,  who  re- 
ceives no  part  of  the  assets,  in  the  reasonable  expectation  that  he 
will  personally  attend  to  the  management  of  the  estate,  that  at  any 
rate  he  will  stand  between  them  and  loss.  They  cannot  tell  who 
will  be  the  acting  administrators.  The  presumption  is,  all  will  act, 
and  on  this  supposition  the  sureties  have  a  right  to  rely,  as  all  are 
frequently  interested  in  the  estates.  Indeed,  when  a  different 
arrangement  is  made,  it  is  a  matter  of  convenience  among  them- 
selves, sometimes  unknown  to  sureties  and  creditors.  If  the  estate 
is  wasted,  it  is  sometimes  with  the  knowledge  and  frequently  with 
the  neglect  of  the  co-administrators.  At  any  rate,  blame  cannot  be 
fairly  imputed  to  the  sureties  or  to  creditors.  What  difference  is  it  to 
them  who  received  the  money  ?  The  only  inquiry  in  which  they 
are  interested  is,  as  to  the  amount  of  the  assets,  and  the  faithful  ad- 
ministration of  them.  If  an  administrator  wishes  to  protect  himself 
from  liability  as  principal,  he  may  do  so  by  taking  the  precaution  of 
entering  into  a  separate  bond.  And  this  has  been  frequently  done 
by  careful  and  experienced  practitioners,  where  one  of  the  adminis- 
trators, as  is  sometimes  the  case  where  the  administration  has  been 
contested,  has  been  unwilling  to  become  bound,  as  a  principal,  for  the 
acts  of  the  other.  In  this  view  of  the  law,  we  are  supported  by 
Babcock  v.  Hubbard,  2  Conn.  Rep.  536.  It  was  there  held,  that 
executors  who  join  in  a  bond  to  the  judge  of  probate,  become  jointly 
liable  as  principals  to  indemnify  the  surety,  for  the  default  of  one  of 
them.  Babcock  v.  Hubbard  was  the  case  of  a  suit  brought  by  the 
surety  in  the  bond  against  one  of  two  executors.  It  was  contended 


May  1833.]  OF  PENNSYLVANIA.  369 

•i 

[Boyd  v.  Boyd.] 

that  as  the  defendant  had  been  personally  guilty  of  no  default  or 
misconduct  as  executrix,  she  was  not  bound  to  indemnify  the  surety. 
The  defendant  said,  that  when  one  executor  is  liable,  upon  a  pro- 
bate bond,  for  the  default  of  his  co-executor,  his  liability  is  only  that 
of  a  surety  or  guarantee.  But  this  conclusion,  says  Justice  Gould, 
is  incorrect;  for  though  the  liability  of  each  of  the  executors  as  par- 
ties to  the  bond,  may,  as  between  themselves,  resemble  that  of  a  surety 
for  his  principal ;  yet  as  it  regards  the  plaintiff,  who  is  to  every 
intent  a  mere  surety,  they  must  clearly  be  considered  as  joint  princi- 
pals. For  principals  in  an  obligation,  as  distinguished  from  sureties, 
are  those  of  the  obligors  the  performance  of  whose  duty  the  obliga- 
tion is  given  to  secure.  The  result  of  this  then  is,  that,  except  as 
between  themselves,  it  is  a  matter  of  indifference,  what  amount  of 
assets  each  has  received.  Each  is  bound  for  the  others  as  a  princi- 
pal, so  far  as  regards  sureties,  creditors  or  legatees. 

The  counsel  of  the  plaintiff  in  error  further  complain  of  the  in- 
struction of  the  court  in  this,  that  interest  might  be  given  by  the 
jury  beyond  the  penalty  of  the  bond.  In  this  we  perceive  nothing 
of  which  they  have  a  right  to  complain.  This  direction  was  only 
material  as  it  related  to  the  allegation  that  the  bond  had  been  altered 
by  the  plaintiff. 

It  has  been  repeatedly  ruled  that  interest  beyond  the  penalty  of  a 
bond  may  be  recovered  in  a  court  of  law  in  the  shape  of  damages ; 
and  this  has  been  so  held  in  Harris  v.  Clap,  I  Mass.  Rep.  308,  even 
as  against  a  surety.  Whether  in  all  cases  interest  may  be  given  be- 
yond the  penalty  on  a  bond  for  the  payment  of  money,  it  is  unne- 
cessary to  decide  ;  but  it  is  clear  that  interest  may  be  allowed  from 
the  time  of  demand,  or  where  there  has  been  forbearance  at  the  re- 
quest of  the  defendant,  or  where,  as  here,  the  interest  was  given 
from  the  commencement  of  the  suit.  2  Stark.  Rep.  167  ;  3  Games' s 
Rep.  48 ;  3  Wend.  444 ;  2  Doll.  255  ;  3  Bro.  Cha.  Rep.  489 ;  9 
Cranch  109  ;  1  Atk.  79;  2  Gill  fy  Johns.  279,  280;  3  Serg.  # 
Rawle  297 ;  5  Johns.  Cha.  Rep.  283 ;  6  Johns.  Cha.  Rep.  1,  452 ;  7 
Johns.  Cha.  Rep.  17 ;  11  Serg.  fy  Rawle  72. 

The  other  reasons  for  a  new  trial  have  been  but  little  pressed,  and 
as,  from  a  view  of  the  whole  case,  it  appears  that  justice  has  been 
done,  we  are  of  opinion  that  the  judgment  should  be  affirmed. 

Judgment  affirmed. 


2  w 


370  SUPREME  COURT  [Lancaster, 


Trustees  of  Jacobs  against  Bull  et  al. 
Jacobs  against  Bull  et  al. 

A  legacy  to  a  child  vested,  but  not  charged  on  land,  and  payable  with  interest,  by 
the  terms  of  the  will,  at  twenty-one,  shall  nevertheless  be  paid  presently  at  the  death 
of  the  child,  should  that  event  happen  before  the  time  of  payment  originally  appoint- 
ed. But  where  it  is  presumed  from  the  circumstances  and  the  condition  of  the  estate, 
that  the  postponement  was  intended  for  the  benefit  of  others,  the  time  of  payment 
will  not  be  hastened  by  the  death  of  the  legatee.  Nor  will  the  payment  be  hastened 
by  his  death  in  any  case  when  the  legacy  is  charged  upon  land. 

When  the  same  individual  is  an  executor  of  a  will  and  also  the  trustee  of  a  fund 
arising  out  of  the  estate  of  the  testator,  and  receives  money  in  contemplation  of  law 
as  trustee,  it  is  demandable  from  him  in  no  other  character. 

APPEAL  from  the  circuit  court  of  Lancaster  county. 

These  were  two  actions  of  assumpsit  for  money  had  and  received, 
in  which  the  facts  were  the  same,  and  which  were  stated  and  agreed 
to  be  taken  in  the  nature  of  a  special  verdict.  In  the  first,  Levi  Bull 
and  Molton  C.  Rogers,  trustees  of  Coleman  Jacobs,  were  plaintiffs ; 
and  Levi  Butt,  William  Coleman  and  Molton  C.  Rogers  were  defend- 
ants. In  the  second,  Samuel  F.  Jacobs  by  his  guardian  Mary  Jacobs, 
was  plaintiff;  and  Levi  Bull,  William  Coleman  and  Molton  C.  Rogers 
were  defendants. 

The  facts  were  thus  stated,  and  questions  raised  in  the  first  case. 

Cyrus  S.  Jacobs,  Esq.  died  on  the  6th  of  May  1830,  having  made 
his  last  will  and  testament,  which  was  on  the  13th  of  May  proved 
in  due  form  of  law,  and  letters  testamentary  granted  by  the  register 
to  Levi  Bull,  Molton  C.  Rogers  and  William  Coleman,  three  of  the 
executors  named  therein  ;  Samuel  O.  Jacobs  and  Coleman  R.  Jacobs 
having  previously  renounced. 

By  the  said  will,  Cyrus  Jacobs,  Esq.  devised,  inter  alia,  as  follows, 
viz.  "  item,  to  my  son,  Coleman  R.  Jacobs,  I  will  Whitehall  planta- 
tion, and  the  woodland  belonging  to  it,  both  deeded  to  me  by  James 
Hopkins;  and  five  and  three-fourths  acres  of  church  land,  deeded  to 
me  by  Edward  Davis  ;  these  tracts  is  about  two  hundred  and  fifty- 
five  acres,  and  the  mills  and  land,  about  sixty-two  acres,  deeded  to 
me  by  the  Newswanger  family;  these  several  tracts  is  about  three 
hundred  and  seventeen  acres,  be  the  same  more  or  less,  with  all  the 
improvements ;  and  32,000  dollars,  to  be  paid  in  instalments  of  2000 
dollars  a  year,  with  interest,  to  him  and  his  heirs.  Now  if  my  said 
son  Coleman  takes  again  to  drink,  I  will  that  my  executors,  hereafter 
named,  take  the  benefit  of  the  law  made  for  such  cases,  and  to  take 
the  property  out  of  his  hands  for  the  use  of  him  and  his  family." 

Coleman  R.  Jacobs  and  Mary  his  wife,  by  indenture  duly  executed, 


May  1833.]  OF  PENNSYLVANIA.  371 

[Jacobs  v.  Bull  etal.] 

acknowledged  and  recorded,  bearing  date  the  12th  July  1831,  for 
the  causes  and  considerations  therein  expressed,  conveyed  to  Levi 
Bull  and  Motion  C.  Rogers,  the  plaintiffs  in  this  action,  certain  real 
and  personal  estate  to  hold  for  the  uses  and  upon  the  trusts  in  the 
said  indenture  specified  and  contained. 

On  the  13th  of  April  1833,  Coleman  R.  Jacobs  died  intestate,  leav- 
ing a  widow,  Mary  Jacobs,  and  issue  one  child,  a  son,  Samuel  F. 
Jacobs,  whose  guardian  is  the  said  Mary  Jacobs,  by  force  of  the  ap- 
pointment in  the  deed  of  12th  July  1831  contained. 

On  the  23d  of  April  1833,  letters  of  administration  on  the  estate 
of  Coleman  R.  Jacobs  deceased,  were  in  due  form  of  law  granted  to 
his  brother  Samuel  O.  Jacobs. 

Of  the  32,000  dollars  bequeathed  to  Coleman  R.  Jacobs,  by  his 
father,  the  defendants,  the  executors  of  Cyrus  Jacobs,  Esq.  have  paid 
two  instalments  of  2000  dollars  each,  with  interest,  viz.  2000  dol- 
lars to  Coleman  R.  Jacobs,  and  2000  dollars  to  Levi  Bull  and  Motion 
C.  Rogers,  his  trustees,  the  plaintiffs  in  this  suit. 

There  is  now  remaining  in  the  hands  of  the  defendants,  executors 
of  Cyrus  Jacobs,  Esq.  the  sum  of  28,000  dollars. 

Two  questions  are  submitted  for  the  decision  of  the  court. 

1.  Can  the  defendants,  the  executors  of  Cyrus  Jacobs,  Esq.  pay 
over  to  the  legal  representatives  of  Coleman  R.  Jacobs,  at  this  time, 
the  whole  of  said  sum  of  28,000  dollars,  or  must  it  be  paid  by  them 
in  annual  instalments,  as  directed  by  the  will? 

2.  Can  the  plaintiffs,  the  trustees  of  Coleman  R-  Jacobs,  recover 
from  the  defendants,  the  executors  of  Cyrus  Jacobs,  Esq.  in  any 
event ;  or  does  the  fund  in  their  hands,  or  so  much  of  it  as,  by  the 
deed  of  the  12th  of  July  1831,  is  limited  to  the  use  of  Samuel  F. 
Jacobs,  the  son  of  the  said  Coleman,  belong  to  him  and  become  pay- 
able to  his  guardian,  and  the  balance  to  Mary  Jacobs,  the  widow  of 
the  said  Coleman,  agreeably  to  the  provisions  of  said  deed  of  12th 
July  1831 1 

If  the  opinion  of  the  court  be  in  the  affirmative,  upon  either  of 
these  questions,  then*  judgment  to  be  entered  in  favour  of  the  plain- 
tiffs, for  such  sum  of  money  as  the  court  may  think  them  entitled  to 
recover  at  this  time,  but  if  in  the  negative  the  judgment  to  be  enter- 
ed generally  for  the  defendants. 

Upon  the  26th  of  April  1833,  the  court  entered  judgment  in  favour 
of  the  plaintiffs  for  the  sum  of  28,000  dollars. 

Upon  the  same  day,  the  defendants  appealed  to  the  supreme  court, 
and  assigned  as  their  reason  for  the  appeal,  that  the  judgment  of  the 
circuit  court  ought  to  have  been  rendered  in  favour  of  the  defendants 
and  not  of  the  plaintiffs. 

In  the  second  case  the  facts  were  the  same,  and  the  questions 
submitted  to  the  court  were — 

1.  Can  the  defendants,  the  executors  of  Cyrus  Jacobs,  Esq.,  pay 
over  to  the  legal  representatives  of  Coleman  R.  Jacobs,  at  this  time, 


372  SUPREME  COURT  [Lancaster, 

[Jacobs  v.  Bull  et  al.] 

the  whole  of  said  sum  of  28,000  dollars,  or  must  it  be  paid  by  them 
in  annual  instalments,  as  directed  by  the  will] 

2.  Is  the  plaintiff  entitled  to  recover  from  the  defendants,  the  ex- 
ecutors of  Cyrus  Jacobs,  Esq.  in  any  event,  or  does  the  fund  in  their 
hands  belong  to  the  trustees  named  in  the  deed  of  the  12th  of  July 
1831,  and  become  payable  to  them. 

If  the  opinion  of  the  court  be  in  the  affirmative  upon  either  of 
these  questions,  then  judgment  to  be  entered  in  favour  of  the  plaintiff 
for  the  sum  fixed  by  the  court,  but  if  in  the  negative  the  judgment 
to  be  entered  generally  for  the  defendants. 

Upon  the  26th  of  April  1833,  the  court  entered  judgment  in  favour 
of  the  defendants. 

Upon  the  same  day,  the  plaintiff  appealed  to  the  supreme  court, 
and  assigned  as  his  reason  for  the  appeal,  that  the  judgment  of  the 
circuit  court  ought  to  have  been  rendered  in  favour  of  the  plaintiff 
for  the  damages  claimed  in  the  declaration,  and  not  in  favour  of  the 
defendants. 

The  questions  were  argued  by  Jenkins  and  Montgomery. 

The  opinion  of  the  Court  was  delivered  by 

GIBSON,  C.  J. — A  legacy  to  a  child  vested,  but  not  charged  on 
land,  and  payable  with  interest,  by  the  terms  of  the  will,  at  twenty- 
one,  shall  nevertheless  be  paid  presently  at  the  death  of  the  child, 
should  that  event  happen  before  the  time  of  payment  originally  ap- 
pointed. The  rule  is  laid  down  in  Mr  Roper's  Treatise,  vol.  1,  p.  393, 
with  references  to  the  cases,  but  without  a  clear  and  precise  exposi- 
tion of  the  reason  of  it.  The  reason  and  the  consequences,  however, 
seem  to  be  that,  as  the  estate  would  not  be  increased  by  further 
postponement,  interest  being  demandable  in  compensation  of  delay, 
and  as  the  object  of  the  testator,  evidently  having  respect  to  the  cir- 
cumstances and  condition  of  the  legatee,  would  no  longer  be  pro- 
moted by  it,  no  beneficial  purpose  could  be  answered  by  carrying 
into  effect  an  arrangement  adapted  to  circumstances  which  no  longer 
exist.  And  the  reason  seems  to  imply  this  distinction,  that  where 
the  postponement  is  presumed,  from  circumstances  peculiar  to  the 
child's  condition,  to  have  been  intended  for  his  personal  benefit,  pay- 
ment shall  be  made  as  soon  as  it  is  ascertained  by  his  death,  that  his 
benefit  will  no  longer  be  promoted  by  it ;  but  that  where  it  is  pre- 
sumed from  the  circumstances  and  condition  of  the  estate,  to  have 
been  intended  for  the  benefit  of  others,  the  time  of  payment  shall  not 
be  hastened  by  his  death.  In  accordance  with  this,  we  find  that 
when  less  interest  is  directed  to  be  paid,  than  the  legacy  would  make 
in  the  lands  of  the  executors,  payment  shall  be  deferred  notwith- 
standing the  death,  in  order  to  give  the  estate  the  benefit  of  the  dif- 
ference ;  and  the  same  principle  governs  in  respect  to  the  payment 
of  a  legacy  charged  on  land,  the  time  being  presumed  to  have  been 
postponed  for  the  convenience  of  the  heir  or  devisee  ;  as  was  held  in 


May  1833.]  OF  PENNSYLVANIA.  373 

[Jacobs  v.  Bull  et  al.] 

Feltham  v.  Feltham,  2  P.  Wms  271.  What  then  is  the  case  stated] 
A  father  bequeaths  a  legacy  of  32,000  dollars  to  his  son,  in  annual 
instalments  of  2000  dollars,  with  interest  on  the  principal,  and  without 
charging  it  on  land.  It  seems,  therefore,  to  differ  from  the  common 
case  of  payment  at  twenty-one,  in  nothing  but  the  appointment  of 
several  days  of  payment  instead  of  a  single  one.  The  clause  empow- 
ering the  executors  to  take  possession  of  the  real  estate  given,  in 
addition  to  the  legacy,  in  case  the  son  should  relapse  into  habits  of 
inebriety,  instead  of  making  room  for  an  exception,  proves  that  the 
protraction  of  payment  was  intended  to  protect  him  from  the  temp- 
tation to  squander  incident  to  the  possession  of  large  sums  of  ready 
money,  and  brings  the  case  more  emphatically  within  the  reason  of 
the  rule  ;  to  say  the  least,  it  cannot  make  a  difference  unfavourable 
to  it.  By  the  death  of  the  son,  then,  the  unexpended  residue  became 
presently  payable  to  those  who  have  succeeded  to  his  rights ;  and 
whether  by  the  executors  to  his  trustees  under  the  deed  of  assign- 
ment, or  by  the  executors  directly  to  the  guardian  of  his  infant,  the 
party  beneficially  entitled  under  the  deed,  is  all  that  remains  to  be 
determined.  It  is  said  that  as  the  money  is,  in  point  of  fact,  as  much 
in  the  hands  of  the  executors  as  it  is  in  those  of  the  trustees,  and  as 
any  further  execution  of  the  trust  is  rendered  unnecessary  by  the 
death  of  him  who  created  it,  payment  may  be  had  from  the  execu- 
tors without  the  intervention  of  the  trustees.  But  as  money  can 
pass  only  by  delivery,  it  must  necessarily  have  been  taken  to  have 
been  in  the  hands  of  the  two  executors  who  had  it  in  fact,  in  their 
character  of  trustees,  in  order  to  protect  it  from  the  subsequent  debts 
of  the  legatee,  against  which  it  was  the  design  of  the  trust  to  guard 
it ;  and  having  been  received  by  them  in  contemplation  of  law  as 
trustees,  it  is  demandable  from  them  in  no  other  character.  What- 
ever, then,  may  be  the  right  of  the  guardian  to  possession  of  the 
fund,  it  can  not  be  enforced  in  this  action. 
Judgment  in  each  suit  affirmed. 


374  SUPREME  COURT  [Lancaster, 


Arrison  against  The  Commonwealth. 

A  bond  given  by  executors,  conditioned  for  the  faithful  discharge  of  their  duties, 
in  pursuance  of  an  order  of  the  orphan's  court,  was  sued  by  one  legatee  in  the  name 
of  the  Commonwealth  for  his  own  use,  and  a  judgment  was  obtained  by  award  of 
arbitrators  for  the  amount  of  the  penalty  with  the  right  to  take  out  execution  for  the 
amount  of  his  damages;  these  damages  were  paid  by  the  defendant,  and  the  legatee 
entered  satisfaction  on  the  judgment.  Held,  that  such  satisfaction  extended  only  to 
the  interest  of  that  legatee,  and  a  scire  facias  may  be  issued  upon  the  judgment  to 
enable  any  other  of  the  legatees  to  recover  their  legacy  ;  and  a  legatee  wnose  le- 
gacy did  not  become  due  until  after  the  date  of  the  judgment  may  also  maintain  a 
scire  facias  upon  it. 

Such  a  judgment  is  final  and  not  interlocutory,  and  is  a  lien  upon  all  the  lands  of 
the  defendant  in  the  county  where  it  is  rendered  ;  but  its  lien  is  limited  to  five  years 
by  force  of  the  act  of  1798. 

Another  legatee  having  sued  the  same  bond  and  obtained  judgment  for  the 
penalty  with  the  right  to  take  out  execution  for  the  amount  of  his  legacy  :  it  was 
held  that  although  the  first  suit,  if  it  had  been  pleaded,  would  have  been  a  bar  to  the 
second ;  yet  the  circumstance,  of  its  having  been  paid,  and  satisfaction  entered  upon 
the  record,  did  not  in  any  way  affect  the  judgment  in  the  first  suit,  or  the  right  of  any 
legatee  or  party  in  interest  to  maintain  a  scire  facias  upon  it. 

After  the  lapse  of  five  years  from  the  rendition  of  the  original  judgment,  lands 
which  were  originally  bound  by  its  lien  are  discharged. 

A  scire  facias  which  does  not  properly  recite  the  original  judgment,  will  not  con- 
tinue its  lien,  although  after  the  five  years  have  elapsed  the  court  permit  the  scire 
facias  to  be  amended  so  as  to  recite  it  properly. 

THE  facts  of  this  case  were  stated  and  considered  in  the  nature  of 
a  special  verdict,  all  of  which  are  fully  recited  in  the  opinion  of  the 
court. 

Porter,  for  plaintiff  in  error. 
Hepburn,  for  defendant  in  error. 

The  opinion  of  the  Court  was  delivered  by 

KENNEDY,  J. — This  case  has  been  brought  before  us  by  a  writ  of 
error  to  the  judges  of  the  court  of  common  pleas  of  Northampton 
county  :  where  The  Commonwealth  for  the  use  of  Rebecca  Rhea  was 
plaintiff;  and  Thomas  M'Cracken  and  Dilman  Kulb,  the  plaintiffs  in 
error,  with  John  Fulmer  and  John  Hartzell,  were  defendants.  The 
three  latter  were  warned,  as  terre  tenants  of  some  of  the  lands  upon 
which  it  was  claimed,  that  the  judgment  upon  which  the  scire  facias 
was  sued  out  was  a  lien.  The  material  facts,  as  set  forth  in  a  case 
stated  by  the  parties  in  the  nature  of  a  special  verdict,  were :  that 
two  suits  had  been  brought  in  the  court  of  common  pleas  of  North- 
ampton county  in  the  name  of  the  Commonwealth  to  August  term 
1817,  against  Jephthah  Jlrrison,  Thomas  JJP  Cracken  and  John  Nelson  ; 
one,  No.  112,  for  the  use  of  Samuel  Rhea  M'Kibbin  and  Jinn  M'Kib- 
bin,  by  their  guardian  William  M'Kibbin,  and  the  second,  No.  113, 


JWaT/1833.]  OF  PENNSYLVANIA.  375 

[Arrison  v.  The  Commonwealth.] 

for  the  use  of  George  Jones  Rhea,  by  his  guardian  William  Rhea. 
Both  suits  were  commenced  upon  the  same  bond,  which  had  been 
given  by  Jephthah  Jlrrison,  one  of  the  executors  of  the  last  will  and 
testament  of  Samuel  Rhea  deceased,  with  Thomas  M'Cracken  and 
John  Jfelson  as  his  sureties ;  conditioned  for  Jephthah  Arrison  and  his 
co-executor  James  Davison  "  well  and  truly  administering  all  the 
goods,  chattels,  rights  and  credits  which  were  of  the  deceased  at  the 
time  of  his  death,  and  which  had  or  at  any  time  afterwards  should 
come  to  their  hands,  or  that  of  any  other  for  their  use,  according  to 
the  directions  of  the  testament  and  last  will  of  the  deceased,  &c." 

The  amount  or  penalty  of  the  bond  was  12,000  dollars,  and  given 
on  the  28th  of  May  1817,  in  pursuance  of  a  previous  decree  of  the 
orphan's  court  of  Northampton  county,  made  upon  the  complaint  of 
some  of  the  legatees  named  in  the  will,  that  the  executors  were 
wasting  and  carrying  off  out  of  the  state,  from  which  they  had  re- 
moved themselves,  the  estate  of  the  testator.  These  suits  were  in- 
stituted upon  the  bond  by  William  M'Kibbin  and  William  Rhea,  for 
the  use  of  their  respective  wards,  to  recover  legacies  coming  to  them 
under  the  will.  On  the  12th  of  November  1817,  judgment  by 
agreement  of  the  parties  was  entered  in  each  suit  for  "  the  penalty 
of  the  bond,  with  leave  to  take  out  execution  after  the  18th  day  of 
May  then  next  following,  for  the  sum  of  788  dollars  and  92  cents, 
the  principal  and  interest  due,  together  with  the  interest  accruing 
and  costs  of  suit."  On  the  3d  of  May  1820,  William  M'Kibbin, 
the  guardian  named  in  the  first  judgment,  by  his  attorney  in  fact, 
William  Rhea,  entered  on  the  record  thereof,  that  he,  as  the  "  guar- 
dian of  the  plaintiff,  had  received  full  satisfaction  of  that  judgment, 
as  it  respected  their  claim  on  the  judgment  in  the  above  case." 

Upon  the  5th  of  June  1822,  a  scire  facias  was  sued  out,  returnable 
to  August  term  1822,  No.  37,  said  to  be  upon  the  judgment  in  the 
action  No.  112  of  August  term  1817  ;  but  this  writ  of  scire  facias 
recited  a  judgment  which  never  existed,  and  one  altogether  different 
from  that  which  was  entered  in  the  suit  No.  112  of  August  term 
1817.  The  recital  is,  "  whereas,  the  Commonwealth  of  Pennsylvania 
for  the  use  of  Rebecca  Rhea,  heretofore  in  our  court  of  common  pleas 
of  the  county  of  Northampton,  to  wit  on  the  term  of  August  1817, 
before  Robert  Porter,  esquire,  and  his  associates,  then  our  judges  at 
Easton,  by  the  consideration  of  the  same  court,  recovered  against 
Jephthah  Jlrrison,  Thomas  M'Cracken  and  John  JVWsow,late  of  the  said 
county,  yeomen,  as  well  a  certain  debt  of  788  dollars  and  92  cents, 
lawful  money  of  Pennsylvania,  which  to  the  said  Commonwealth, 
for  the  use  aforesaid,  in  our  said  court  were  adjudged  for  her  damages 
which  she  sustained  by  occasion  of  the  detention  of  that  debt ; 
whereof  the  said  Jephthah  Arrison,  Thomas  M'Cracken  and  John  Nel- 
son are  convict ;  as  by  the  record  and  proceedings  thereupon  in  our 
said  court,  before  our  judges  at  Easton,  remaining,  more  fully  ap- 
pears." And  then,  after  further  reciting  that  five  years  had  nearly 
expired  since  the  said  judgment  was  obtained,  and  that  the  lien  on 


376  SUPREME  COURT  [Lancaster, 

[Arrison  v.  The  Commonwealth.] 

said  real  estate  of  the  defendants  would  be  lost  unless  revived,  it 
proceeds  to  direct  the  sheriff  to  warn  the  defendants  in  the  usual 
form.  To  this  writ  the  sheriff  returned,  that  he  had  served  it  upon 
M'Cracken  and  Nelson,  two  of  the  defendants,  and  given  notice  to 
Henry  Smith,  terre  tenant.  Afterwards,  on  the  31st  of  August  1822, 
a  judgment  by  default  was  entered  for  want  of  appearance.  Upon 
this  judgment,  on  the  26th  of  October  following,  a  writ  of  fieri  facias 
was  sued  out,  and  indorsed  as  follows.  "Real  debt  due  1st  April 

1821,  170  dollars  and  14  cents.     Interest  from  1st  of  April  1821  to 
31st  of  August  1822, 14  dollars  and  46  cents.    Amount  due  1st  April 

1822,  105  dollars  and  10  cents.     Interest  fiom  1st  of  April  1822  to 
31st  August  1822,  2  dollars  and  62  cents.     In  all,  292  dollars  and 
33  cents."   A  tract  or  lot  of  land,  the  property  of  Jephthah  Arrison,  was 
levied  on  under  this  writ,  and  afterwards  sold,  upon  a  writ  of  vendi- 
tioni  exponas,  for  136  dollars.   And  again,  on  the  olh  of  April  1824,  an 
alias  fieri  facias  was  sued  out  to  April  term  1824,  for  the  residue;  and 
by  indorsement  thereon,  the  sheriff  was  "  directed  to  levy  on  the  lands 
of  the  defendant,  John  Nelson,  then  in  the  hands  and  possession  of 
T.  T.  CuZp."     The  lands  of  Nelson  were  levied  on,  and  the  rents, 
issues  and  profits  of  them,  beyond  reprizes,  were  found  by  the  inquest 
sufficient  to  pay  the  amount  of  the  execution  in  seven  years.     An- 
terior to  this,  at  April  term  1823,  in  the  court  below,  an  amicable 
action,  in  the  nature  of  a  writ  of  sdre  facias,  to  ascertain  the  amount 
due  to  John  Rhea,  another  legatee  under  the  will,  upon  the  judg- 
ment in  the  action  of  August  term  1817,  No.  112,  was  entered,  but 
nothing  more  done  in  it. 

After  these  proceedings  were  had,  Rebecca  Rhea,  the  widow  of  the 
testator,  who  claimed  a  certain  annuity  under  the  Will,  commenced 
this  suit,  in  which  the  judgment  is  now  brought  up  for  review,  by 
suing  out  a  writ  of  sdre  facias  for  her  use,  to  August  term  1826,  upon 
the  judgment  rendered  for  12,000  dollars,  in  the  suit  No.  112,  already 
stated,  to  August  term  1817.  In  this  writ,  after  reciting  the  judg- 
ment as  it  appears  on  the  record,  and  the  bond  and  condition 
thereof  upon  which  it  was  given,  and  so  much  of  the  will  of  the 
testator  as  to  show  the  annuity  which  was  thereby  directed  to  be 
paid  to  her  by  the  executors  out  of  the  estate  of  the  testator  in  their 
hands ;  the  arrearages  of  the  annuity  accruing  from  the  1st  of  April 
1822  to  the  28th  of  November  1825,  amounting  in  the  whole  to 
397  dollars  and  87  cents,  are  set  forth  ;  and  the  nonpayment  of  the 
same  assigned  as  a  breach.  To  this  writ,  which  was  put  into  the 
hands  of  the  sheriff,  he  returned,  that  he  had  "  made  known  to 
Thomas  M'Cracken,  one  of  the  defendants,  and  to  Dilman  Gulp, 
John  Fulmer  and  John  Hartzell,  terre  tenants  ;  and  nihU  as  to  JJrrison 
and  JVe/son."  The  land  of  which  Hartzell  was  in  possession, 
amounted  to  forty -one  acres  and  sixty  perches ;  and  he  claimed 
to  be  tenant  of  it  in  fee  simple,  by  purchase  from  Thomas  M'Cracken, 
one  of  the  defendants,  for  the  price  of  1950  dollars  ;  and  by  deed  of 


May  1833.]  OF  PENNSYLVANIA.  377 

[Arrison  v.  The  Commonwealth.] 

conveyance  founded  upon  this  purchase,  duly  executed  byM  'Cracken 
and  his  wife  to  him,  on  the  26th  of  June  1819. 

Fulmer  was  in  possession  of  twenty-four  acres  and  one  hundred 
and  forty  perches,  and  held  by  a  purchase  of  the  same  from  Marga- 
ret M'Cracken,  for  the  consideration  of  600  dollars  paid  to  her, 
who,  by  her  deed  dated  12th  of  May  1823,  sold  and  conveyed  the 
same  to  him,  under  a  title  derived  from  Thomas  M'Cracken  and  his 
wife,  who,  on  the  16th  of  June  1819,  by  their  deed,  for  the  consid- 
eration of  1200  dollars  paid  to  them  by  her,  sold  and  conveyed  the 
same  twenty-four  acres  and  one  hundred  and  forty  perches  to  her 
in  fee. 

JDilman  Culp  or  Kulb  is  in  the  possession  of  one  hundred  and  forty- 
six  acres  and  thirteen  perches  ;  and  has  become  the  tenant  thereof 
in  fee  simple  by  purchase  from  John  JVWson,  one  of  the  defendants  in 
the  original  judgment,  for  the  price  of  1533  dollars  and  75  cents,  and 
holds  the  same  by  a  deed  of  conveyance  duly  executed  by  JVe/son 
and  his  wife,  on  the  10th  day  of  April  1823.  500  dollars  of  the 
1533  dollars  and  75  cents,  the  consideration  money  inserted  in  the 
deed  of  conveyance,  although  acknowledged  by  the  deed  to  have  been 
paid,  still  remains  unpaid  by  Kulb  to  JVWson.  After  the  com- 
mencement of  this  suit,  and  while  it  wras  pending  in  the  court  below, 
a  rule  of  the  same  was  entered  on  the  1st  of  September  1827,  to  show 
cause  why  the  writ  of  scire  facias  sued  out,  returnable  to  August 
term  1822,  No.  37,  should  not  be  amended  by  the  proscipe  and  record, 
so  as  to  recite  the  sum  for  which  the  original  judgment  was  entered  ; 
and  on  the  day  of  November  following,  this  rule  was  made 

absolute,  and  an  amended  writ  of  scire  facias  filed. 

From  these  facts,  the  court  below  gave  judgment  in  favour  of 
Fulmer  and  Hartzell,  two  of  the  terre  tenants;  but  against  M'Cracken 
and  the  other  tenant  Dilman  Kulb,  who  have  sued  out  the  writ  of 
error  in  this  case. 

Four  errors  have  been  assigned,  but  three  questions  only  are  pre- 
sented by  them. 

1st.  Did  the  original  judgment,  entered  in  the  suit  No.  1 12,  of  Au- 
gust term  1817,  for  the  penalty  of  12,000  dollars,  create  a  lien  to  that 
amount  upon  the  real  estate  of  the  defendants  lying  within  the 
county  1  And  if  it  did,  2d.  Has  any  act  been  done  to  extinguish 
it ;  or  has  it  expired  by  force  of  the  act  of  1799,  limiting  the  lien 
of  judgments  ?  And  3d.  Had  Rebecca  Rhea  a  right  to  sue  out  the 
writ  of  scire  facias  in  this  case  upon  that  judgment  of  12,000  dollars 
arrearages  of  her  annuity,  which  did  not  accrue  and  become  payable 
until  long  after  the  judgment  had  been  obtained  ? 

As  to  the  first  question,  this  court  is  of  opinion  that  the  judgment 
entered  for  the  penalty  of  the  bond  became  a  lien  from  its  date,  to 
the  full  extent  of  the  penalty,  or  12,000  dollars,  upon  the  whole  of 
the  real  estate  of  the  defendants,  which  they  then  owned,  lying 
within  the  county  of  Northampton. 

Whether  judgment  entered  for  the  penalty  of  a  bond  in  such  case 
2x 


378     .  SUPREME  COURT  [Lancaster, 

[Arriaon  v.  The  Commonwealth.] 

be  n  lien  or  not  upon  the  real  estate  of  the  defendant,  depends  upon 
the  character  of  the  judgment,  whether  it  be  an  interlocutory  or  a  final 
judgment.  If  it  be  merely  interlocutory,  it  is  no  lien  ;  but  if  final,  it 
is  so  upon  all  the  lands  of  the  defendant  lying  within  the  county  at 
the  time  of  entering  it.  See  Lewis  v.  Smith,  2  Serg.  4"  Rawle  161, 
opinion  of  Justice  Yeates. 

A  bond,  such  as  the  one  upon  which  this  judgment  of  12,000  dol- 
lars was  entered,  conditioned  for  the  performance  of  several  acts  and 
things  at  different  times,  becomes  forfeited  as  soon  as  the  obligor 
fails  or  neglects  to  do  the  first  act  that  is  required  by  the  condition  of 
the  bond  to  be  performed ;  and  the  obligor  is  entitled,  according  to 
the  principles  of  the  common  law,  not  only  to  sue  upon  the  bond, 
but  to  recover  a  judgment  and  have  execution  for  the  whole  amount 
of  the  penalty,  if  not  paid.  Gainsford  v.  Griffith,  1  Saund.  58,  note  ( 1 ) . 

After  some  time  courts  of  equity  interposed,  and  granted  relief 
from  the  payment  of  (he  penalty:  in  some  cases  where  it  was  large 
and  the  real  injury  trifling;  and  in  all  cases  where  the  object  of  the 
penalty  was  to  secure  the  payment  of  a  less  sum  of  money,  which, 
if  paid  afterwards  with  interest,  was  considered  in  equity  an  adequate 
compensation  for  the  injury  which  arose  from  the  nonpayment  of  it 
according  to  the  condition  of  the  bond.  See  1  Fonb.  Eq.  151,  note 
(a)  ;  1  Fonb.  Eq.  395  to  397;  1  Saund.  58,  note  (1).  And  before 
the  statute  of  8  and  9  Will.  30,  cap.  2,  came  into  operation,  it  was  not 
competent  for  the  plaintiff  to  assign,  in  an  action  of  debt  upon  a  bond 
with  a  condition  for  the  performance  of  covenants  or  other  collateral 
acts,  more  than  one  breach ;  for  if  he  had,  it  would  have  been  bad  for 
duplicity ;  and,  again,  because  the  bond  was  forfeited  as  much  by 
the  breach  of  one  covenant,  or  failure  to  perform  one  act,  as  of  all 
the  covenants  or  acts  required  to  be  done.  1  Saund.  58,  note  (1) ; 
Manser's  Case,  2  Co.  4,  where  Sir  Edward  Coke  cites,  21  Ed.  4,  6,0,  6, 
for  the  first  branch  of  this  proposition.  The  judgment,  then,  which 
was  given  for  the  plaintiff,  upon  the  bond  for  the  penalty,  was  final 
and  .complete,  whereby  not  only  his  right  to  recover,  which  is  all  that 
an  interlocutdry  judgment  established,  but  the  amount,  is  fixed  and 
ascertained,  which  gives  to  it  the  character  of  a  final  judgment,  and 
makes  it  binding,  to  the  full  amount  for  which  it  is  entered,  upon  the 
real  estate  of  the  defendant.  Thus  stood  the  case  of  a  bond  condi- 
tioned for  the  performance  of  covenants  or  of  collateral  acts,  until  the 
passage  of  8  and  9  Will.  3,  cap.  2,  which  has  been  adopted  in  this 
state,  but  has  in  no  wise  changed  the  nature  or  character  of  the 
judgment  that  is  to  be  entered,  which  must  still  be  for  the  amount 
of  the  penalty,  the  same  as  before  the  passage  of  the  statute.  By 
the  eighth  section  of  it,  the  judgment,jwhich  is  entered  for  the  whole 
penalty,  is  only  to  stand  as  a  security  for  the  damages  actually  sus- 
tained, which  are  to  be  assessed  by  the  jury  that  shall  try  the  cause; 
or  in  case  of  a  judgment  had  upon  demurrer  or  by  default,  it  is  also 
to  be  entered  for  the  whole  amount  of  the  penalty,  but  to  remain  as 
a  security  for  the  damages  actually  sustained,  which  the  plaintiff, 


May  1833.]  OF  PENNSYLVANIA.  379 

[Arrison  v.  The  Commonwealth.] 

by  suggesting  the  breaches  upon  the  record,  is  entitled  to  have  as- 
signed under  a  writ  of  inquiry,  the  form  of  which  is  given  in  Lilly's 
Entries  608,  609.  After  this  proceeding  is  had,  if  the  damages  and 
costs  are  not  paid,  the  plaintiff  may  sue  out  an  execution,  which 
must  be  to  levy  the  debt,  that  is,  the  penalty  and  costs  recovered  by 
the  judgment ;  but  on  the  execution  there  ought  to  be  an  indorse- 
ment to  levy  only  the  damages  assessed  for  the  breaches  assigned. 
1  Saund.  58,  note  (1).  And  Sergeant  Williams  further  says  in  this 
note,  which  seems  to  put  an  end  to  all  question  on  this  point,  that 
"  the  statute  does  not  direct  any  judgment  to  be  entered  for  the  damages 
assessed,  and  for  the  costs  upon  the  return  of  the  inquisition  by  the 
judge;  thereforeit  shouldseem  there  can  only  be  one  judgment,  namely, 
the  old  judgment  for  the  debt  (that  is,  the  penalty)  and  one  shilling 
damages  for  the  detention,  and  40  shillings  costs,  together  with  the 
costs  of  increase."  From  this  it  appears  that  the  only  judgment 
which  is  entered  in  a  suit  upon  such  a  bond,  as  well  since  the  passage 
of  the  statute  of  8  and  9  Will.  3,  as  before,  is  one  for  the  whole 
penalty,  nominal  damages  and  the  costs ;  and  that  no  other  is  to  be 
entered  at  any  stage  of  the  proceeding ;  and  that  for  the  amount  of 
this  judgment,  which  is  for  the  penalty,  the  execution  must  be  sued 
out  in  all  cases,  if  taken  out  at  all. 

In  addition  to  this,  the  statute  expressly  declares,  that,  notwith- 
standing the  damages,  costs  and  charges  shall  be  fully  paid,  yet 
"  in  each  case  the  judgment  shall  remain  as  a  further  security,  to 
answer  to  the  plaintiff  such  damages  as  he  may  sustain  by  any  other 
breach  of  covenant  contained  in  the  same  indenture,  deed  or  writing; 
upon  which  the  plaintiff  may  have  a  scire  facias  upon  the  said  judg- 
ment against  the  defendant,  his  heirs,  terre  tenants,  executors  or  ad- 
ministrators, suggesting  other  breaches  of  the  said  covenants  or  agree- 
ments, and  to  summon  him  or  them  respectively  to  show  cause  why 
execution  should  not  be  awarded  upon  the  said  judgment"  Now, 
unless  the  judgment  that  is  entered  for  the  penalty  be  held  to  bind 
the  real  estate  of  the  defendant,  this  clause  of  the  statute,  which 
directs  that  it  shall  remain  as  a  further  security,  would  be  eluded, 
and  rendered  inoperative  ;  for  it  is  only  by  its  becoming  a  lien  upon 
his  real  estate  that  it  can  afford  any  real  substantial  security. 

As  to  the  second  question,  it  has  been  contended,  that  the  original 
judgment  of  12,000  dollars  was  extinguished  on  the  3d  day  of  May 
1820,  by  the  satisfaction  which  was  then  entered  by  the  guardian 
of  those  who  caused  the  suit  to  be  instituted  ;  but  that  was  merely 
an  entry  of  satisfaction  for  the  damages  which  had  been  assigned,  by 
the  convention  of  the  guardian  and  the  defendants,  as  the  amount 
or  sum  of  money  that  was  coming  to  his  wards,  and  not  a  satisfaction 
of  the  judgment  for  the  penalty.  The  party  who  entered  that  satis- 
faction, had  no  power  to  enter  a  satisfaction  that  would  have  extin- 
guished the  judgment  for  the  penalty.  So  far  only  as  he,  or  his  wards 
for  whom  he  was  acting,  had  an  interest  in  and  a  right  to  an  execu- 
tion upon  it,  to  compel  payment  of  the  damages  to  which  they  were 


380  SUPREME  COURT  [Lancaster, 

[Arrison  v.  The  Commonwealth.] 

entitled,  he  could  satisfy  it,  but  no  further.  The  Commonwealth  is 
the  plaintiff  in  the  judgment  for  the  penalty,  and  a  trustee  for  all 
concerned  and  interested  in  it ;  and  no  cestui  que  use  can  enter  satis- 
faction that  will  extend  beyond  his  own  interest,  although  he  may 
have  commenced  the  suit  and  prosecuted  it  to  a  judgment  for  the 
penalty.  Neither  did  the  second  judgment  entered  in  the  second 
suit,  No.  1 13  of  August  term  1817,  upon  the  same  bond,  for  the  same 
penalty,  affect  the  judgment  in  No.  112  in  any  way  whatever,  nor 
prevent  the  proceeding  upon  it  which  is  now  under  consideration,  as 
has  been  suggested.  But  the  first  suit  and  judgment  might  have 
been  pleaded  against  the  maintenance  of  the  second,  which  was 
altogether  irregular  ;  for  only  one  judgment  can  be  had  on  such  a 
bond.  The  bond  becomes  merged  in  the  first  judgment,  and  no  suit 
can  be  sustained  upon  it  afterwards,  except  it  be  by  statute,  as  in  the 
cases  of  sheriff's  and  constable's  office  bonds  with  us,  where  it  is 
directed  otherwise.  But  it  is  the  opinion  of  this  court,  that  the  lien 
created  by  the  entry  of  the  judgment  for  the  penalty  of  the  bond,  in 
the  suit  No.  1 12,  expired  at  the  expiration  of  five  years  from  the  first 
day  of  the  term  of  which  it  was  entered,  inasmuch  as  it  was  not 
revived  and  kept  alive  by  issuing  a  scire  facias  within  that  time  upon 
it,  according  to  the  directions  of  the  act  of  assembly  of  1798,  limit- 
ing the  liens  of  judgments. 

The  scire  facias  which  was  issued  to  August  term  1822,  No.  37, 
did  not  recite  this  judgment  at  all,  and  can  not,  therefore,  be  consi- 
dered as  coming  within  the  provisions  of  the  act.  Dilman  Kulb  be- 
came a  purchaser  of  the  land  in  his  possession,  and  received  a  deed 
of  conveyance  for  it  on  the  10th  of  April  1823,  when  the  five  years 
had  run  and  the  judgment  of  12,000  dollars  had  ceased  to  be  a  lien 
on  it.  The  attempt  that  was  made  to  amend  the  scire  facias  of  1822, 
can  not  avail.  It  shows,  however,  that  in  the  opinion  of  the  counsel 
who  moved  for  it,  as  well  as  that  of  the  court  that  granted  it,  that 
the  writ  was  radically  defective,  and  that  the  judgment  entered  on 
it  was  insufficient  to  preserve  and  continue  the  lien,  without  an 
amendment,  which  changed  by  far  the  most  important  feature  of  it. 
The  rule  asked  for,  was  to  amend  the  writ  so  as  to  make  it  accord 
with  ihepracipe  that  was  given  for  the  issuing  of  it,  and  the  record  of 
the  judgment.  Now  it  does  not  appear  that  the  scire  facias  was  va- 
riant in  any  particular  from  the  pr&cipe.  It  was,  therefore,  not  autho- 
rized by  it.  Beside  this,  it  must  be  apparent  to  every  intelligent 
mind,  upon  mature  reflection,  that  it  was  out  of  all  time  to  make 
such  an  amendment  for  the  purpose  of  resuscitating  a  lien  which  was 
clearly  dead.  More  than  ten  years  had  elapsed  from  the  date  of  the 
original  judgment,  at  the  time  when  the  amendment  was  applied  for  ; 
and  more  than  five  years  had  run  around  from  the  date  of  the  judg- 
ment entered  in  the  scire  facias  which  was  amended.  The  lien  of 
every  judgment  is  limited  by  the  act  of  assembly  already  mentioned 
to  five  years,  unless  revived  by  scire  facias  as  therein  directed.  Now 
whether  the  lien  of  a  judgment  be  kept  alive  and  still  in  force,  is  a 


MaylQ33.]  OF  PENNSYLVANIA.  381 

[Arrison  v.  The  Commonwealth.] 

question  that  can  only  be  determined  by  an  inspection  of  the  record, 
and  if  that  does  not  show  it  to  be  so,  it  is  dead  and  gone.  Then 
what  would  have  been  the  answer  of  any  mind  familiar  with  such  a 
subject,  if  this  question  had  been  put  at  the  time  the  rule  to  amend 
was  entered  ?  It  is  scarcely  possible  to  doubt  but  that  the  answer 
would  have  been,  that  the  lien  had  expired,  as  more  than  five  years 
had  run  after  the  date  of  the  judgment,  or  the  first  day  of  the  term 
of  which  it  was  entered,  and  no  scire  facias  appearing  upon  the  record 
to  have  been  issued  upon  it  to  revive  it.  The  application  to  amend 
the  scire  facias  which  was  issued,  proves  that  no  such  scire  facias  as 
was  requisite  for  this  purpose  appeared  of  record,  otherwise  the  ap- 
plication was  unnecessary ;  but  the  very  object  of  the  amendment 
was  to  put  such  a  scire  facias  upon  record,  because  it  did  not  appear 
there  before.  The  lien  then  of  this  judgment  of  12,000  dollars, 
which  was  entered  on  the  12th  of  November  1817,  having  been  per- 
mitted to  expire  by  the  lapse  of  five  years  without  issuing  a  scire 
facias  upon  it  for  the  purpose  of  recovering  it,  Dilman  Kulb  stood  a 
purchaser  of  his  land  in  fee  simple,  discharged  from  the  lien  of  this 
judgment ;  and  the  court  below  were  therefore  wrong  in  awarding 
execution  of  the  judgment  against  the  land  which  he  had  purchased 
of  John  Nelson  one  of  the  defendants.  It  is  also  equally  clear  that 
no  execution  upon  this  judgment  could  be  awarded  against  Kulb  on 
account  of  the  500  dollars,  part  of  the  purchase  money  which  he  still 
owed  Nelson  for  the  land,  because  these  five  hundred  dollars  were  a 
debt  merely,  or  chose  in  action,  which  Nelson  had  against  Kulb,  and 
do  not  appear  to  be  even  charged  upon  the  land  in  any  way  ;  and 
can  not  be  made  the  subject  of  execution. 

As  to  any  lien  that  may  have  existed  under  the  judgment  in  the 
scire  facias  of  August  term  1822,  No.  37,  at  the  time  Kulb  purchased 
it,  if  any  was  created  by  it,  it  has  been  suffered  to  expire,  five  years 
having  passed  by  without  any  attempt  to  revive  it.  Hence,  it  does  not 
appear  that  there  is  any  colour  for  charging  Rebecca  Rhea's  claim 
upon  the  land  of  which  Kulb  is  tenant  in  any  way  whatever. 

With  respect  to  the  third  question,  we  have  seen  already  in  that 
part  of  the  statute  of  8  and  9  Will.  3,  ch.  2,  which  has  been  recited, 
that  provision  is  expressly  made  for  the  assignment  and  recovery  of 
damages  which  shall  arise  from  breaches  happening  after  the  entry 
of  the  original  judgment.  That  as  often  as  such  breaches  shall  take 
place,  the  plaintiffis  thereby  authorized  and  enabled  to  sue  out  a  scire 
facias  upon  the  judgment,  suggesting  the  new  breaches ;  and  the 
damages  for  and  on  account  thereof,  are  to  be  assessed  in  like  man- 
ner as  for  the  first  in  the  original  proceeding — in  which  no  other 
judgment  is  necessary  to  be  rendered  than  the  usual  one  in  a  scire 
faciast  of  an  award  of  execution.  This,  it  may  here  be  observed,  shows 
also  the  final  and  definitive  character  of  the  judgment  that  is  given 
in  the  first  instance  for  the  penalty  of  the  bond. 

( In  the  note  of  Sergeant  Williams  so  often  referred  to,  1  Saund.  58, 
note  (1),  all  this  is  most  explicitly  declared  and  set  forth  ;  and  like- 


382  SUPREME  COURT  [Lancaster, 

[Arrison  v.  The  Commonwealth.] 

wise  in  Tidtfs  Pract.  1012,  1013.  The  commonwealth  is  and  must 
be  considered  as  the  plaintiff  in  the  court  below,  in  all  the  proceed- 
ings that  have  been  had  upon  the  bond  and  judgment  now  under 
consideration,  which  brings  the  case  completely  within  the  provisions 
of  the  statute  of  8  and  9  Will.  3,  and  makes  the  proceeding  against 
Thomas  M'Cracken  perfectly  regular  and  sustainable,  to  recover 
damages  for  breaches  committed  after  the  entry  of  the  judgment  for 
the  penalty  of  the  bond. 

The  judgment  of  the  court  below  awarding  execution  against  the 
land  in  the  possession  of  Dilman  Kulb  is  reversed,  but  the  judgment 
against  Thomas  M'Cracken  is  affirmed. 


Commonwealth  against  Beatty. 

A  remedy  having  been  provided  by  statute,  proceedings  were  instituted  under  it, 
but  during  their  pendency  the  statute  was  repealed ;  held,  that  the  remedy  was  thereby 
taken  away ;  and  any  further  proceeding  to  enforce  it  illegal. 

CERTIORARI  to  the  quarter  sessions  of  Dauphin  county. 

At  January  sessions  1830,  George  Beatty  and  others  presented 
their  petitions  to  the  court,  praying  the  appointment  of  viewers  to 
assess  damages  done  to  their  lands  by  the  construction  of  the  Penn- 
sylvania canal,  in  pursuance  of  the  act  of  assembly  of  the  9th  of 
April  1827;  and  the  viewers  were  appointed.  On  the  6th  of  April 
1830,  an  act  was  passed  repealing  the  act  of  the  9th  of  April  1827, 
and  providing  another  mode  of  proceeding  to  ascertain  damages.  In 
these  cases  the  viewers  met  and  made,  report,  on  the  16th  of  April 
1830,  in  favour  of  the  petitioners,  which  were  subsequently  confirmed 
by  the  court,  and  removed  to  this  court  by  certiorari.  The  exception 
made  here  was,  that  the  further  proceedings  according  to  the  provi- 
sions of  the  act  of  1827,  after  its  repeal,  were  illegal. 

Foster,  for  the  commonwealth. 
Elder,  contra. 

The  opinion  of  the  Court  was  delivered  by 

KENNEDY,  J. — The  records  of  the  proceedings  in  these  several 
cases  were  removed  and  certified  into  this  court,  in  obedience  to  four 
several  writs  of  certiorari,  issued  out  of  the  same,  directed  to  the 
quarter  sessions  of  Dauphin  county.  From  the  records  it  appears 
that  the  defendants  in  error  respectively  presented  their  petitions  to 
the  court  of  quarter  sessions  of  Dauphin  county,  at  January  sessions 
1830,  praying  the  appointment  of  viewers,  according  to  the  provi- 
sions of  an  act  of  assembly  passed  the  9th  day  of  April  1827  enti- 


May  1833.]  OF  PENNSYLVANIA.  383 

[Commonwealth  v.  Beatty.] 

tied  "  an  act  to  provide  for  the  further  extension  of  the  Pennsylva- 
nia canal,"  to  view  the  lands  described  in  their  respective  petitions, 
of  which  they  alleged  they  were  the  owners ;  and  complained  that 
they  were  injured  and  damnified  by  reason  of  the  said  canal,  which 
had  been  completed  through  the  same,  and  to  report  the  amount  of 
the  damages,  if  any,  which  they  respectively  had  sustained.  View- 
ers were  accordingly  appointed  by  the  court,  who,  after  having 
viewed  the  premises  set  forth  in  the  respective  petitions  and  recited 
in  the  orders  of  the  court,  made  reports  in  favour  of  the  complainants 
for  damages  in  each  case,  dated  in  three  of  them  on  the  16th  and 
in  the  fourth  on  the  17th  of  April  1830. 

The  last  error  or  exception,  which  is  considered  fatal  to  the  reports 
of  the  viewers  and  the  proceedings  thereon  in  these  cases,  is  the  only 
one  upon  which  we  shall  give  an  opinion,  it  being  unnecessary  to 
notice  the  others. 

This  exception  is,  that  an  act  of  the  legislature  was  passed  the 
6th  of  April  1830,  a  few  days  before  the  reports  of  the  viewers  were 
made,  entitled  "  an  act  relative  to  the  appointment  of  canal  com- 
missioners," which,  among  other  things,  took  away  all  power  and 
authority  from  the  court  of  quarter  sessions,  and  from  the  viewers, 
to  act  or  do  any  thing  whatever  in  such  cases  after  that  date. 

By  the  fifth  section  of  this  last  act,  it  is  enacted,  "  that  in  cases 
where  injury  or  damage  has  been  done  or  may  be  done  to  private  pro- 
perty, by  reason  of  the  Pennsylvania  canal  or  railroad  passing 
through  the  same,  &c.,  it  shall  be  the  duty  of  the  canal  commiss- 
ioners to  ascertain,  as  nearly  as  may  be  in  their  power,  the  amount 
of  damages  actually  sustained,  and  to  make  an  offer  of  such  sum  to 
the  person  or  persons  aggrieved  as  they  shall  think  reasonable,  &c. ; 
and  if  the  same  should  not  be  accepted,  &c."  then  the  right  of  ap- 
peal to  a  board  of  appraisers,  which  the  governor  by  the  sixth  sec- 
tion of  the  act  was  required  to  appoint  immediately  upon  its  being 
passed,  is  given,  whose  duty  it  shall  be  "justly  and  equitably  to  as- 
sess the  damages  sustained  by  such  person,  in  the  manner  directed 
by  the  existing  laws,  whose  determination  thereon  shall  be  final." 
By  this  act  the  power  to  assess  the  damages,  as  well  for  injuries 
done  previously  to  its  passage  as  subsequently,  is  expressly  given  to 
the  canal  commissioners ;  and  in  case  the  party  aggrieved  should 
not  be  satisfied  with  their  offer,  then  the  amount  or  sum  to  be  finally 
determined  by  the  board  of  appraisers :  thus  taking  away  all  right 
to  petition  the  court  of  quarter  sessions  of  the  county,  and  also  all 
right  in  that  court  to  appoint  viewers,  or  even  to  approve  the  reports 
of  viewers  which  had  been  made  to  them  or  might  thereafter  be 
made  by  viewers  who  had  been  appointed  under  the  act  of  1827 
anterior  to  this  last  act  of  the  6th  of  April  1830.  There  is  no  saving 
clause  contained  in  this  last  act  providing  for  carrying  on  and  com- 
pleting the  proceedings  then  commenced  and  still  pending  under 
the  act  of  the  9th  of  April  1827,  or  any  prior  act  for  assessing 
damages ;  but  by  its  terms  it  came  into  full  operation  immediately 


384  SUPREME  COURT  [Lancaster, 

[Commonwealth  v.  Beatty.J 

after  its  passage,  declaring  in  the  close  of  the  ninth  and  last  section, 
that  "  so  much  of  any  act  as  is  thereby  altered  or  supplied  is  re- 
pealed." Neither  can  I  believe  that  this  is  to  be  attributed  to  inad- 
vertence or  oversight  on  the  part  of  the  legislative  body.  On  the 
contrary,  I  feel  satisfied  that  it  was  so  intended  ;  for  cases  of  damages 
are  expressly  mentioned  in  the  close  of  the  sixth  section  of  this  act, 
where  it  is  "  provided  that  nothing  therein  contained  shall  be  con- 
strued to  prevent  the  board  of  commissioners  from  compromising  all 
cases  of  damages  then  pending  in  court"  showing  demonstratively 
that  cases  such  as  these  now  before  us  were  within  their  view,  and 
not  overlooked. 

At  the  time  the  viewers  assessed  and  reported  the  damages  in 
these  cases,  it  is  clear,  then,  there  was  no  law  authorizing  them  to 
do  so ;  nor  was  there  any  law  in  being  at  that  time  or  afterwards 
which  authorized  or  gave  power  to  the  court  of  quarter  sessions  to 
approve  the  reports  or  to  confirm  them  in  any  way.  All  jurisdiction 
and  authority  of  that  court  in  such  cases  was  repealed  and  taken 
away  by  the  act  of  the  6th  of  April  1830  :  hence  all  the  proceedings 
subsequent  to  that  time,  although  done  only  for  the  purpose  of  finish- 
ing what  had  been  previously  and  rightfully  commenced,  are  irre- 
gular, and  must  be  quashed.  This  conclusion  seems  to  be  in  perfect 
accordance  with  reason,  and  is  amply  sustained  by  authority ;  see 
Mailer's  cose,  1  Bl.  Rep.  451 ;  S.  C.  3  Burr.  1456  ;  and  the  proceed- 
ings in  laying  out  a  road  under  certain  acts  of  assembly  which  were 
repealed  before  the  proceeding  was  completed ;  4  Yeates  392. 

The  proceedings  in  each  of  these  cases  are  therefore  quashed. 


May  1833.]  OF  PENNSYLVANIA.  385 


Gordon  against  Preston. 

A  corporation  which,  by  its  charter,  is  authorized  to  purchase  in  fee,  or  for  any  less 
estate,  "all  such  lands,  tenements  and  hereditaments,  and  estate,  real  and  personal, 
as  shall  be  necessary  and  convenient  for  them  in  the  prosecution  of  their  works  ; 
and  the  same  to  sell  and  dispose  of  at  their  pleasure :"  has  power  to  mortgage  its  real 
estate  to  secure  the  payment  of  a  debt. 

If  a  mortgage  by  a  corporation  be  executed,  not  on  a  charter  day,  or  day  appointed 
by  a  by-law,  but  at  a  special  meeting,  convened  without  notice,  written  or  verbal, 
to  the  directors  who  did  not  attend,  it  would  be  voidable  by  the  corporation.  But 
if  no  objection  be  made  by  the  corporation,  it  will  be  deemed  to  have  acquiesced  in 
and  ratified  the  proceeding. 

A  judgment  creditor  of  a  corporation  cannot  take  advantage  of  such  an  irregularity 
in  the  execution  of  a  mortgage  by  it,  so  as  to  defeat  it,  and  entitle  himself  to  the  pro- 
ceeds of  the  sale  of  the  mortgaged  premises. 

The  fact  of  a  mortgage  given  for  a  greater  sum  than  was  due,  will  not  avoid  it, 
unless  it  be  done  with  a  fraudulent  intent. 

A  mortgage  by  a  corporation,  executed  by  the  members  of  the  board  of  directors 
present,  and  acknowledged  by  them,  and  the  seal  of  the  corporation  affixed,  is  a  good 
execution  and  acknowledgement. 

A  corporator  may  sustain  the  relation  of  debtor  or  creditor  in  regard  to  the  corpo- 
ration, and  in  the  latter  receive  a  security. 

Part  of  a  conversation  having  been  given  in  evidence  by  one  party,  the  other  is 
entitled  to  have  the  whole  conversation  from  the  same  witness. 

ERROR  to  the  common  pleas  of  Lancaster  county. 

This  was  a  feigned  issue  directed  by  the  court  of  common  pleas  to 
try  the  validity  of  a  mortgage  by  the  President,  Directors  and  Company 
for  erecting  a  permanent  bridge  of  the  river  Susquehannah  at  or  near 
M."1 Call's  Ferry,  to  Jonas  Preston  and  Abraham  Bailey. 

Daniel  Gordon,  the  defendant  in  this  issue,  was  a  judgment  credi- 
tor of  the  bridge  company,  and  therefore  interested  to  defeat  the 
mortgage,  by  procuring  a  decision  that  it  was  invalid.  His  counsel, 
upon  the  trial  of  this  issue,  raised  these  points. 

1.  That  the  law  creating  the  corporation  did  not  authorize  the 
company  to  raise  money  by  mortgaging  its  real  estate,  which  depended 
upon  the  construction  of  that  part  of  the  act  of  incorporation  which 
is  in  these  words  :  "  and  the  said  company  is  hereby  authorized  to 
purchase  in  fee,  or  for  any  less  estate,  all  such  lands,  tenements  and 
hereditaments,  and  estate  real  and  personal,  as  shall  be  necessary 
and  convenient  for  them  in  the  prosecution  of  their  works  ;  and  (he 
same  to  sell  and  dispose  of  at  their  pleasure." 

2.  That  the  resolution  of  the  directors,  authorizing  the  execution 
of  the  mortgage,  was  not  passed  at  a  regular  and  legal  meeting  of  the 
board  ;  and  that  all  the  members  had  not  notice  of  it.     The  facts  on 
this  subject  were,  that  the  resolution  was  passed,  and  the  mortgage 
executed,  at  a  special  meeting  convened  for  the  purpose,  at  which  a 
quorum  was  present,  but  one  or  more  of  the  members  had  not  notice 
and  did  not  attend. 

2? 


386  SUPREME  COURT  [Lancaster, 

[Gordon  v.  Preston.] 

3.  That  the  mortgage  was  given  to  secure  a  larger  sum  than 
was  due.     It  was  given  for  a  larger  sum  than  was  due  to  Pres- 
ton and  Bailey ;  but  it  was  to  secure  other  just  debts  of  the  company, 
although  the  trust  was  not  mentioned. 

4.  That  the  execution  and  acknowledgement  of  the  mortgage  was 
not  legal.     The  facts  were,  that  the  mortgage  was  signed  by  all  the 
directors  present,  and  sealed  with  the  seal  of  the  corporation,  and 
acknowledged  by  them. 

5.  That  the  mortgage  was  illegal,  because  the  mortgagees  were 
the  president  and  treasurer  of  the  company,  and  were  present  at  the 
meeting  of  the  board  when  the  mortgage  was  authorized  and  exe- 
cuted.    These  facts  were  as  stated. 

6.  The  plaintiff  in  error  also  assigned  for  error  the  admission  in  evi- 
dence by  the  court,  of  the  declarations  of  Bailey,  one  of  the  mortga- 
gees.  The  defendant's  counsel  had  asked  a  witness  to  give  evidence  of 
the  declaration  of  Bailey,  which  he  did  ;  and  the  plaintiffs  then  asked 
the  witness  to  state  other  parts  of  the  same  conversation  :  which  was 
objected  to,  and  the  objection  was  overruled,  and  exception  taken  by 
the  defendant. 

The  cause  was  argued  in  this  court  by 

Champneys  and  JVoms,  for  plaintiff  in  error. 
Parke,  for  defendant  in  error. 

The  opinion  of  the  Court  was  delivered  by 

GIBSON,  C.  J. — The  exceptions  in  this  multifarious  record  may  be 
arranged  under  the  following  heads  :  1.  The  power  of  the  company 
to  mortgage  :  2.  The  legality  of  the  meeting  at  which  the  mortgage 
was  executed  :  3.  The  amount  of  the  mortgage  debt  being  greater 
than  the  sum  due  to  the  mortgagees  :  4.  The  validity  of  the  acknow- 
ledgement and  recording :  5.  The  power  of  the  directors  to  deal  with 
the  corporate  property  :  6.  The  competency  of  their  declarations  not 
made  in  a  corporate  meeting. 

1.  By  the  second  section  of  the  act  of  incorporation,  the  company 
was  authorized  to  purchase  in  fee  or  for  any  less  estate,  "  all  such 
lands,  tenements  or  hereditaments,  and  estate  real  and  personal,  as 
shall  be  necessary  and  convenient  for  them  in  the  prosecution  of 
their  works ;  and  the  same  to  sell  and  dispose  of  at  their  pleasure." 
According  to  the  principle  of  Lancaster  v.  Dolan,  \  Rawle  131,  a 
power  to  sell  includes  a  power  to  mortgage,  even  under  the  statute 
of  uses,  though  strictly  construed ;  and  a  fortiori  it  ought  under 
a  statutory  grant  which  is  to  be  beneficially  construed  in  furtherance 
of  the  object.  But  the  superadded  words,  "  dispose  of,"  which  would 
otherwise  be  redundant,  leave  no  doubt  of  the  existence  of  an  intent 
to  give  the  corporation  power  to  part  with  its  real  estate  by  any 
voluntary  act,  without  regard  to  the  mode  of  its  operation ;  and,  as 
a  power  to  incumber,  might  be  necessary  to  the  prosecution  of  its 
works,  it  is  not  to  be  doubled  that  it  was  intended  to  be  given. 


May  1833.]  OF  PENNSYLVANIA.  387 

[Gordon  v.  Preston.] 

2.  On  the  other  hand  it  is  equally  clear  that  the  mortgage  did  not 
originally  bind  the  corporation.  It  was  executed  not  on  a  charter 
day,  or  a  day  appointed  by  a  by-law,  but  at  a  special  meeting  con- 
vened without  notice  written  or  verbal  to  the  directors  who  did  not 
attend.  When  the  day  has  not  been  fixed  by  other  competent  au- 
thority, this  notice  is  indispensable  to  a  legal  convention  for  the  trans- 
action of  even  the  ordinary  business.  But  here  an  extraordinary  act 
was  to  be  performed  ;  the  hypothecation  of  the  real  estate  ;  and  there 
was,  therefore,  the  greater  reason  that  all  the  directors  should  be 
summoned.  The  board  consisted  of  nine  members,  a  bare  majority 
of  whom,  being  competent,  assembled  to  perform  the  act ;  and  hence 
it  might  happen  in  such  a  case,  if  no  more  were  summoned,  that  the 
major  part  of  this  majority,  being  a  third  of  the  whole,  would  per- 
form it  in  opposition  to  the  will  of  the  two-thirds.  To  prevent  such  a 
conjuncture,  it  is  necessary  to  give  at  least  an  opportunity  for  an  ex- 
pression of  the  voices  of  all. 

But  can  the  act  be  impugned  now?  A  corporation  can  contract  but 
by  its  agents,  general  or  special ;  and  in  pursuance  of  powers  delegated 
specially  by  its  grant  to  particular  persons,  or  generally,  by  its  char- 
ter, to  the  officers  entrusted  with  its  affairs.  Hence,  the  members 
of  this  board  stood  in  relation  to  it,  as  servants  whose  acts  may  be 
disaffirmed  for  defect  of  authority,  but  by  their  master.  But  the 
maxim  which  makes  ratification  equivalent  to  a  precedent  authority, 
is  as  much  predicable  of  ratification  by  a  corporation  as  it  is  of  ratifi- 
cation by  any  other  principal,  and  it  is  equally  to  be  presumed  from 
the  absence  of  dissent.  Now  the  validity  of  this  mortgage  is  un- 
questioned by  the  corporation  even  at  this  day,  though  its  existence 
has  all  along  been  known  to  the  corporate  officers,  whose  duty  it  was 
to  disavow  it,  had  there  been  an  intent  to  contest  it.  The  corporation 
then  being  satisfied  with  it,  who  has  a  right  to  object  ?  In  the  Silver 
Lake  Bank  v.  North,  4  Johns.  Cha.  Rep.  373,  it  was  supposed  that  the 
right  of  a  bank  to  take  a  mortgage  as  a  concurrent  security,  though 
prohibited  by  the  charter,  could  be  contested  only  by  the  state,  in  a 
direct  proceeding  to  establish  a  forfeiture,  and  not  collaterally  by  a 
stranger.  In  that  case,  the  want  of  authority  arose  out  of  the  pro- 
visions of  the  charter ;  in  this,  out  of  the  negligence  of  the  corporate 
officers :  but  the  principle  is  broad  enough  to  cover  both,  as  it  was 
thought  that  none  but  the  parties  to  the  act  of  delegation  were  com- 
petent to  allege  the  existence  of  a  defect  in  the  authority.  That  the 
mortgagees  were  members  of  the  board,  cannot  prejudice  their  title  ; 
for  treating  with  the  corporation  as  individuals,  and  consequently  as 
strangers,  they  were  not  bound  to  inquire  into  the  regularity  of  the 
convocation,  or  to  know  that  some  of  the  corporators  had  not  been 
summoned.  Appearing  at  the  meeting  to  mingle  in  the  business  of 
it,  not  as  agents  of  the  corporation,  but  as  parties  treating  adversely 
to  its  interests ;  they  are  presumed,  as  corporators,  to  know  nothing 
which  a  stranger  would  not  be  bound  to  know.  Then,  granting  the 
defendant,  as  a  judgment  creditor,  to  have  succeeded  to  the  rights 


388  SUPREME  COURT  [Lancaster, 

[Gordon  v.  Preston.] 

and  capacity  of  the  corporation,  his  succession  did  not  occur  till  after 
more  than  eight  months  from  the  performance  of  the  act,  during  all 
which  time  the  corporation  was  silent,  though  the  absent  members 
had  notice  of  the  mortgage  by  the  minutes.  At  the  period  of  the 
defendant's  succession,  then,  the  time  for  objection  had  gone  by,  and 
if  it  had  not,  still  even  he  was  quiescent  till  about  the  time  of  award- 
ing the  issue,  in  which  the  validity  of  the  mortgage  is  drawn  into 
question.  To  disaffirm  it  now,  when  every  opportunity  of  obtaining 
any  other  security  is  lost,  would  be  unconscionable ;  and  the  act, 
therefore,  though  originally  unauthorized,  must  be  taken  to  have 
been  subsequently  ratified. 

3.  The  circumstance  that  the  amount  included  was  more  than 
what  was  demandable,  if  such  were  the  fact,  would  not  avoid  the 
mortgage  for  the  sum  actually  due.     Such  was  deemed  to  be  the 
law  in  Irwin  v.  Tabb,  17  Serg.  fy  Rawle  319,  and  the  cases  there 
cited.     But  the  mortgage  was  in  fact  given  for  the  benefit  of  other 
creditors,  whose  debts  are  not  disputed ;  and,  though  the  trust  is  not 
expressed  in  the  instrument,  evidence  was  proper  to  explain  the  true 
nature  of  the  transaction,  and  negative  any  imputation  of  actual 
fraud. 

4.  It  does  not  appear  that  the  seal  of  this  corporation  was  confided 
to  the  custody  of  any  particular  officer.     It  was  affixed  to  the  mort- 
gage by  the  corporators  present  as  such,  together  with  their  signa- 
tures; and,  as  the  statute  requires  the  acknowledgement  of  the 
grantor,  or  proof  of  execution  to  be  made  by  the  subscribing  witnesses, 
the  latter  is  contended  to  be,  from  the  nature  of  the  case,  alone  prac- 
ticable.    But  a  corporation  may  appoint  an  attorney  for  that  or  any 
other  purpose  ;  and  where  the  officers  or  members  of  the  body  are 
competent  to  affix  the  seal,  it  would  be  strange  if  they  were  not 
competent  also  to  declare  the  fact,  especially  as  it  lies  more  imme- 
diately within  the  knowledge  of  those  who  performed  the  act,  than 
it  would  be  within  the  knowledge  of  a  special  attorney. 

5.  That  a  corporator  may  sustain  the  relation  of  debtor  or  creditor 
in  regard  to  the  corporation,  and  in  the  latter  receive  a  security,  is  a 
proposition  which  requires  not  the  aid  of  an  argument;  and  here  the 
existence  of  a  meritorious  debt  is  not  disputed. 

6.  Declarations  of  Bailey  to  M'Call  were  first  given  in  evidence 
by  the  defendant,  and  the  plaintiffs  were  therefore  entitled  to  all  that 
was  said  by  him.     His  admissions  were  material,  not  as  a  corporator, 
(for  he  was  not  a  director,  but  the  treasurer,  and  as  such  had  nothing 
to  do  with  the  mortgage),  but  as  a  creditor,  whose  debt,  among 
others,  was  secured  by  it ;  and  it  is  a  common  rule,  that  a  party  can- 
not avail  himself  of  a  confession  by  selecting  a  particular  part  of  it. 

Neither  in  this,  nor  in  any  other  part  of  the  record,  therefore,  do 
we  discover  any  error. 
Judgment  affirmed. 


May  1833.]  OF  PENNSYLVANIA.  389 


Morris  against  Phaler. 

The  bequest  of  a  general  power  of  disposal,  carries  the  absolute  property  wherever 
a  limited  interest  is  not  given  ;  such  power,  being  a  principal  attribute  of  ownership, 
necessarily  implies  the  existence  of  it,  wherever  the  implication  is  not  rebutted  by 
the  bequest  of  a  special  interest  inconsistent  with  it. 

ERROR  to  the  common  pleas  of  York  county. 

This  was  an  amicable  action  of  debt  by  Christian  Phaler  against 
Joseph  JHorris,  in  which  this  special  verdict  was  found. 

On  the  1st  of  November  1789,  John  Shafer  made  his  will,  by  which 
he,  among  other  things,  devised  to  his  wife  Christina  a  house  and 
half  lot  in  the  borough  of  York,  to  enjoy  the  same  during  her  widow- 
hood ;  and  in  case  she  should  remain  his  widow  during  her  life,  then 
said  house  and  lot  to  be  sold  after  her  death,  and  the  one  half  of  the 
money  arising  therefrom  he  bequeathed  unto  the  heirs  and  assigns 
of  his  said  wife.  The  said  John  afterwards  died,  and  said  will  was 
duly  proved  and  allowed. 

On  the  23d  of  June  1830,  the  said  Christina  made  her  will,  by 
which  she  directs  her  executors  to  sell  her  real  estate  and  to  pay  one- 
fourth  of  the  proceeds  of  such  sale  to  Christian  Phaler,  the  plaintiff 
in  this  suit.  The  said  Christina  afterwards  died,  and  her  said  will 
was  duly  proved  and  allowed.  At  her  death  she  left  no  real  estate; 
nor  had  she  any  when  she  made  her  will.  She  left  a  small  amount 
of  personal  estate,  which  was  not  sufficient  to  pay  her  debts.  She 
died  indebted  to  the  plaintiff  in  the  sum  of  fifty-five  dollars. 

The  defendant  became  the  administrator  with  her  will  annexed, 
and  administered  her  personal  estate  according  to  law,  but  nothing 
remains  of  it  in  his  hands  to  be  applied  to  the  debt  due  to  the  plain- 
tiff, unless  one  half  of  the  balance  heretofore  mentioned  can  be  so 
applied. 

The  defendant  also  became  the  administrator  de  bonis  non  with 
the  will  of  said  John  Shafer  annexed,  and  after  the  decease  of  said 
Christina,  sold  the  house  and  half  lot  in  which  she  had  her  widow- 
hood, by  the  will  of  said  John  as  aforesaid,  and  of  the  proceeds  thereof 
he  now  has  in  his  hands  a  balance,  after  deducting  the  necessary 
expenses,  of  406  dollars  and  25  cents. 

The  said  Christina  remained  the  widow  of  said  John  Shafer  during 
her  life. 

If  the  one  half  of  the  proceeds  of  said  house  and  lot  be  not  by  law, 
under  the  will  of  said  John,  made  subject  to  the  debts  of  said  Chris- 
tina ;  and  the  plaintiff  be  entitled  under  the  wills  of  said  John  and 
Christina  to  the  one-fourth  of  the  one  half  of  said  proceeds :  then  judg- 


390  SUPREME  COURT  [Lancaster, 

[Morris  v.  Phalor.] 

merit  to  be  given  for  the  plaintiff  in  this  case  for  46  dollars  and  54 
cents. 

But  if  the  same  be  subject  to  the  debts  of  said  Christina,  then  judg- 
ment to  be  given  for  plaintiff  for  35  dollars  and  63  cents,  otherwise 
judgment  for  defendant. 

The  court  below  rendered  a  judgment  for  the  plaintiff  for  35  dol- 
lars and  63  cents. 

Evans,  for  plaintiff  in  error  cited,  3  Binn.  160;  2  Cruise  16,  ch.  1, 
pi  39  ;  Sugd.  Pow.  359  ;  4  Kent.  Com.  328. 

Anderson,  for  defendant  in  error,  cited,  2  Bl.  Com.  381,  note. 

The  opinion  of  the  Court  was  delivered  by 

GIBSON,  C.  J. — This  case  falls  distinctly  within  a  familiar  principle. 
It  is  an  undoubted  rule  that  the  bequest  of  a  general  power  of  dis- 
posal, carries  the  absolute  property  wherever  a  limited  interest  is  not 
given.  And  the  reason  for  it  seems  to  be,  that  such  a  power,  being  a 
principal  attribute  of  ownership,  necessarily  implies  the  existence  of 
it  wherever  the  implication  is  not  rebutted  by  the  bequest  of  a  special 
interest  inconsistent  with  it.  The  rule  is  well  established  by  Maskeyline 
v.  Maskeyline,  Amb.  750,  andJVannocfcv.  Horton,7  Ves.  392;  and  is  par- 
ticularly illustrated  by  Robinson  v.  Dusgale,  2  Fern.  181,  a  case  closely 
resembling  the  present.  There  the  testator  having  devised  his  land 
for  life  to  B,  remainder  in  fee  to  C  on  condition  that  he  pay  400 
pounds,  of  which  he  directed  200  pounds  to  be  at  the  disposal  of  his 
wife  by  her  will ;  it  was  decreed  to  her  administrator  on  the  ground 
that  it  had  vested  in  her  absolutely  in  her  life  time.  Now  what  is 
the  case  before  us  1  The  testator  devised  to  his  wife  a  house  and 
half  lot  of  ground  during  her  widowhood  ;  together  with  a  shop  and 
other  half  lot  of  ground  in  fee.  But  in  case  she  should  marry,  he  or- 
dered the  house  and  half  lot  to  be  sold,  and  one  half  the  proceeds  to 
be  given  her  absolutely  ;  an  arrangement  which,  as  she  remained  a 
widow  till  her  death,  it  is  unnecessary  to  notice  further  than  as  it 
indicates  an  intent  that  she  should  have  a  disposable  interest  in  the 
money  on  the  happening  of  either  contingency.  For  the  actual 
event,  he  provided  thus :  "  in  case  my  said  wife  shall  remain  a 
widow  during  life,  then  I  order  my  house  to  be  sold  as  aforesaid, 
immediately  after  her  decease;  and  the  one  half  of  the  money  arising 
therefrom,  I  give  and  bequeath  to  the  heirs  and  assigns  of  my  said 
wife."  It  is  plain  from  the  context,  if  not  from  the  word  "  assigns," 
that  she  was  to  have  power  to  dispose  of  a  moiety  at  her  death. 
Long  subsequent  to  the  date  of  her  husband's  will,  she  made  her 
own,  directing  her  debts  to  be  paid  out  of  her  personal  estate,  her 
real  estate  to  be  sold  by  her  executor,  and  a  fourth  of  the  proceeds 
to  be  given  to  the  plaintiff.  It  has  been  taken  for  granted  that  this 
devise  of  her  real  estate,  passed  whatever  interest  she  may  have  had 
in  the  proceeds  of  the  house;  and  such  undoubtedly  was  her  intent, 


May  1833.]  OF  PENNSYLVANIA.  391 

[Morris  v.  Phaler.] 

for  at  this  time  she  had  neither  real  estate  nor  any  thing  that  savour- 
ed of  it  but  her  supposed  interest  in  the  price  of  this  property  ;  and 
without  allowing  her  will  to  operate  on  it,  it  can  not  operate  at  all. 
The  defendant,  her  administrator  with  the  will  annexed,  and  also 
the  administrator  de  bonis  non  of  her  husband  with  his  will  annexed, 
administered  her  personal  estate  according  to  law,  no  part  of  which 
remains  in  his  hands  to  satisfy  the  plaintiff,  who  is  also  a  creditor ; 
and  he  sold  the  house  and  half  lot  of  ground  in  which  she  had  her 
widowhood,  the  proceeds  of  which  are  in  contest.  If  the  plaintiffcan 
take  as  a  legatee  but  exclusively  under  her  will,  there  will  be  nothing 
to  answer  his  legacy,  and  he  will  have  to  come  in  as  a  creditor  part 
passu  ;  but  if  he  can  take  as  her  appointee,  under  her  husband's  will, 
he  will  come  in  as  a  legatee  of  the  husband,  and  consequently  by  a 
title  paramount  to  that  of  the  widow  or  her  creditors.  Now  to  mea- 
sure this  case  by  Robinson  v.  Dusgale,  which  it  resembles :  we  have 
the  devise  of  a  freehold  to  the  widow,  with  a  superadded  power  to 
dispose  of  what  1  Not  the  freehold,  but  an  entirely  different  thing — 
the  value  of  the  fee  simple  in  cash.  This  cash  had  not  the  remotest 
connexion  with  the  freehold  that  preceded  it,  being  essentially  a  dif- 
ferent corpus  and  the  product  of  a  different  estate,  in  which  no  limited 
interest  had  been  given  to  the  widow,  the  price  of  the  fee  not  being 
the  price  of  her  freehold,  which  had  been  consumed  in  the  enjoy- 
ment of  it.  We  have  then  precisely  the  case  of  Robinson  v.  Dusgale, 
except  that  the  wife  might  there  have  possibly  come  into  the  actual 
receipt  and  fruition  of  the  money  in  her  life  time,  and  that  here  she 
could  not.  I  see  no  difficulty,  however,  in  that,  or  in  supposing  the 
incidents  of  a  precedent  ownership  to  exist  after  death,  in  relation  to 
property  from  the  enjoyment  of  which  the  owner  was  precluded  in 
his  life  time.  Why  should  the  vesting  of  the  title  be  thought  incon- 
sistent with  a  restriction  of  the  use  1  A  chattel  may  undoubtedly  be 
given  on  condition  of  forbearance  to  use  it  for  a  day  or  a  month  ; 
and  if  for  a  limited  time,  why  not  for  life  ?  The  donee  may  in  fact 
derive  a  valuable  benefit  from  a  gift  thus  limited,  by  being  enabled 
to  use  his  actual  income  the  more  freely,  at  least  to  the  extent  of  the 
gift,  being  to  that  extent  made  secure  of  a  fund  for  payment  of  his 
debts,  or  a  provision  for  his  family.  It  would  seem  to  mej  therefore, 
that  the  title  to  half  the  price  of  this  property  was  in  the  widow  dur- 
ing her  life ;  and  that  it  was  subject  to  her  debts  at  her  death. 
Judgment  affirmed. 


392  SUPREME  COURT  [Lancaster, 


Peifer  against  Landis. 

Part  performance  of  a  parol  contract  for  the  sale  of  land  is  essential  to  its  validity. 

THIS  was  an  action  of  ejectment  in  the  circuit  court  of  Dauphin 
county,  tried  by  Justice  Rogers,  in  which  John  Peifer  and  Sarah  his 
wife  were  plaintiffs,  and  Christian  Landis  and  others  were  defen- 
dants! 

The  plaintiffs  claimed  the  land  by  virtue  of  a  parol  contract,  en- 
tered into  between  George  Bower,  and  Sarah  Bower  the  wife  of  the 
plaintiff.  The  plaintiffs  to  maintain  the  issue  on  their  part,  offered 
to  prove,  that  George  Bower,  with  whom  the  contract  was  made, 
lived  in  Deny  township,  Dauphin  county,  and  in  the  fall  of  1825  or 
spring  of  1826,  requested  the  brother  of  Sarah  Bower,  one  of  the  plain- 
tiffs, to  send  said  Sarah  Bower,  who  lived  in  Franklin  county,  to  his 
house  to  live  with  him  and  take  care  of  him  in  his  old  days.  That 
the  said  Sarah  refused  to  go,  but  insisted  upon  going  with  her 
father's  family  to  Ohio ;  but  was  prevailed  upon  finally,  by  a  brother, 
to  go  and  live  with  George  Bower,  who  was  her  uncle.  That  she 
came  to  live  with  George  Bower,  on  a  piece  of  land  adjoining  the 
land  in  dispute,  in  the  fall  of  1826.  That  after  she  came  to  his 
house,  George  Bower  purchased  the  land  in  dispute,  and  came  into 
his  house  with  the  deed  for  this  land  ;  said  he  had  bought  this  farm, 
and  upon  being  asked  by  Sarah,  why  he  bought  it,  when  he  had  so 
many  farms,  he  said,  "  I  bought  it  for  you,  if  you  will  stay  with  me 
as  long  as  I  live."  That  George  Bower  told  the  tenants  on  the  land 
and  many  other  persons,  that  he  intended  to  give  that  tract  of  land 
to  Sally  Bower,  if  she  lived  with  him  and  took  care  of  him  as  long 
as  he  lived  ;  and  after  his  death  she  might  do  with  it  whatever  she 
pleased.  That  afterwards  the  said  Sarah  Bower  was  going  to  leave 
George  Bower,  and  wanted  to  go  home,  and  he  told  her  he  did  not 
want  her  to  go  away,  and  that  if  she  would  stay  with  him  as  long 
as  he  lived,  he  would  give  her  this  farm,  the  one  in  dispute  ;  and 
that,  in  consequence  of  said  promise  of  George  Bower,  she  remained 
with  him,  nursed  him,  worked  for  him,  and  served  him  faithfully 
until  the  day  of  his  death.  That  if  the  said  George  had  not  made 
the  parol  promise,  she  would  have  left  him  at  the  time  at  which  she 
threatened  to  leave  him.  That  she  then,  in  consideration  of  the  pro- 
mise, remained  with  the  said  George  Bower,  and  did  all  his  work 
and  took  care  of  him,  in  pursuance  of  her  part  of  the  contract,  until 
the  day  of  his  death.  That  the  said  George  made  no  will,  nor  did 
he  comply  in  any  manner  with  his  part  of  the  contract.  That  both 
plaintiffs  and  defendants  in  this  suit  claim  under  the  said  George 


May  1833.]  OF  PENNSYLVANIA.  393 

[Peifer  v.  Landis.] 

Bower,  who  was  seised  in  fee,  and  possessed  of  said  tract  of  land  at 
the  time  of  his  death.  That  the  said  George  Bower  died  possessed 
of  a  very  large  real  and  personal  estate,  and  left  at  the  time  of  his 
death  but  one  child  ;  and  that  the  said  George  often  told  the  said 
Sarah  and  his  neighbours,  that  he  would  do  as  much  for  her  as  for 
his  own  child. 

This  evidence  was  objected  to  by  the  defendants  and  rejected  by 
the  court ;  when  the  plaintiffs  took  a  nonsuit,  which  they  after- 
wards moved  to  take  off,  and  which  was  refused,  and  they  appealed. 

JLlricks  and  Weidman,  for  appellants. 

PER  CURIAM. — There  is  no  pretence  of  parol  performance  here, 
because  there  is  no  pretence  of  delivery  of  possession  in  pursuance  of 
the  contract ;  which  is  essential.  The  evidence,  therefore,  was  pro- 
perly rejected. 

Judgment  affirmed. 


Flicker's  Appeal. 

Land  purchased  by  a  sheriff,  after  he  enters  into  his  official  recognizance,  is  not 
bound  by  that  recognizance,  but  if  judgment  is  obtained  upon  it,  after  he  acquires 
such  land,  the  land  is  bound  by  the  judgment. 

The  lien  of  a  judgment  opened  to  let  .the  defendant  into  a  defence,  "  the  judgment 
to  remain  as  security,"  was  not  lost  by  the  lapse  of  five  years  from  its  entry,  before 
the  act  of  the  26th  of  March  1827,  although  the  entry  of  the  rule  and  order  of  the 
court  opening  the  judgment,  be  made  on  the  execution  docket,  to  the  entry  of  the 
execution  which  had  issued  on  such  judgment. 

The  act  of  the  26th  of  March  1827  requires  a  scire  facias  to  be  issued  to  preserve 
the  lien  in  such  case,  and  the  lien,  since  that  act,  would  not  be  preserved  by  a  rule 
tying  up  the  proceedings. 

Where  a  judgment  opened  to  let  a  defendant  into  a  defence  is  not  brought  to  trial 
within  a  reasonable  time,  and  the  defendant's  real  estate  has  been  sold  by  the 
sheriff,  and  the  money  is  in  court  for  distribution,  the  court  ought  to  permit  the 
judgment  creditor,  who  would  be  next  entitled  to  the  money,  to  appear  as  defendant, 
and  rule  the  plaintiff  to  a  trial. 

APPEAL  from  the  decree  of  the  court  of  common  pleas  of  Berks 
county,  in  the  distribution  of  the  moneys  raised  by  the  sale  of  the 
real  estate  of  John  Miller,  a  former  sheriff  of  that  county.  John 
Mitter  having  been  duly  elected  sheriff,  on  the  20th  of  October  1817 
entered  into  bond  and  executed  a  recognizance  according  to  law. 
To  January  term  1830,  a  writ  of  venditioni  exponas  issued  against 
him,  on  which  his  real  estate  was  sold,  and  the  money  arising  there- 
from paid  into  court  by  the  then  sheriff:  to  wit,  1132  dollars,  arising 
from  real  estate  of  which  the  said  John  Miller  was  seised  and  pos- 
sessed before,  and  at  the  execution  of  said  recognizance ;  and  475  dol- 

.  *    2  z 


394  SUPREME  COURT  [Lancaster, 

[Fricker's  Appeal.] 

lars  and  3  cents,  arising  from  real  estate  which  the  said  John  Miller 
acquired  after  the  execution  arid  date  of  said  recognizance. 

On  Miller's  official  recognizance,  a  scire  facias,  for  the  use  of 
Gabriel  Heister,  issued  to  November  term  1823,  on  which,  on  the 
14th  of  November  1827,  a  judgment  for  1053  dollars  and  17  cents 
was  entered,  upon  an  award  of  arbitrators.  This  judgment  was  en- 
tered after  he  became  the  owner  of  the  real  estate  acquired  by  him 
subsequently  to  the  execution  of  the  recognizance.  The  Bank  of 
Pennsylvania  obtained  a  judgment,  against  MUler  on  the  llth  of 
November  1822,  on  which  a  Jieri  facias  was  issued  to  January  term 
1823  ;  nothing  was  done  by  the  sheriff  on  this  writ;  and  on  the  16th 
of  January  1823,  a  rule  was  obtained  to  show  cause  why  the  defen- 
dant should  not  be  let  into  a  defence  under  this  judgment,  "  pro- 
ceedings stayed  in  the  mean  time."  This  rule,  on  the  26th  of 
March  1823,  was  made  absolute,  "judgment  and  execution  to  re- 
main as  securities."  The  entry  of  these  rules  was  made  in  the  exe- 
cution docket,  and  the  trial  of  the  issue  direcled  had  not  been  had  ; 
but  to  April  term  1830,  a  scire  facias  to  continue  the  lien  of  this  judg- 
ment was  issued,  and  returned  scire  fed. 

William  Frickerhad  judgments  entered  after  the  bank's  judgment, 
which  had  been  regularly  revived. 

The  court  of  common  pleas  decreed:  that  the  sum  of  1132  dollars, 
money  arising  from  the  real  estate  owned  by  John  Miller  before  the 
date  of  said  recognizance,  be  applied  in  payment  of  Gabriel  Heister's 
judgment ;  and  that  the  sum  of  475  dollars  and  3  cents,  arising 
from  the  real  estate  acquired  by  said  John  Miller  after  the  date  of 
said  recognizance,  be  applied  to  the  Bank  of  Pennsylvania's  judg- 
ment. 

The  cause  was  argued  by  Baird  and  Smith,  for  the  appellant,  who 
referred  to  Black  v.  Dobson,  1 1  Serg.  fy  Rawle  94  ;  Pennock  v.  Hart, 
8  Serg.  #  Rawle  369 ;  Bombay  v.  Boyer,  14  Serg.  fy  Rwok  253  ; 
1  Penns.  Rep.  129,  134,  481. 

Biddle,  for  the  appellee. 

The  opinion  of  the  Court  was  delivered  by 

HUSTON,  J. — When  John  Miller  was  elected  sheriff  of  Berks 
county  he  was  the  owner  of  certain  lands,  all  of  which  were  bound 
by  the  recognizance  then  entered  into  by  him  by  the  provisions  of 
the  act  of  the  28th  of  March  1803.  It  has  been  decided  that  a 
judgment  does  not  in  this  state  bind  after-purchased  lands,  unless 
levied  on  while  in  debtor's  hands ;  but  that  if  he  sells  them  to  an  in- 
nocent purchaser  before  levy,  such  purchaser  holds  them  clear  of  the 
lien.  Whether  the  principle  of  that  decision  would  embrace  this 
case  is  not  material,  because  Heister  sued  a  scire  facias  on  that  recog- 
nizance and  presented  it  to  judgment,  which  judgment  bound  all 
lands  which  were  the  property  of  Miller  at  the  date  of  that  judg- 


May  1833.]  OF  PENNSYLVANIA.  395 

[Flicker's  Appeal.] 

ment,  although  not  bound  by  the  recognizance  as  having  been  pur- 
chased after  its  date.  Ifeister  is  then  entitled  to  the  whole  of  his 
judgment  up  to  the  time  of  the  return  of  the  sheriff's  sale,  that  is 
to  1191  dollars  and  8  cents ;  for  all  the  lands  sold  were  Miller's  be- 
fore the  judgment  on  the  scire  facias. 

The  Bank  of  Pennsylvania  had  the  next  judgment,  viz.  of  the  1 1th 
of  November  1822,  and  fieri  facias  issued  to  7th  January  1823.  On 
the  return  day  of  this  fieri  facias,  a  motion  was  made  to  open  their 
judgment  and  let  the  defendant  info  a  defence  ;  a  rule  to  show  cause 
was  entered,  and  made  absolute  on  the  26th  of  March  1823  ;  the 
judgment  and  execution  to  remain  as  securities.  It  would  seem 
nothing  has  been  done  in  this  trial  thus  ordered  ;  but  under  the  act 
of  1827,  and  its  supplement  of  the  26th  of  March  1829,  a  scire  facias 
was  duly  issued  to  show  cause  why  the  lien  should  not  be  continued 
five  years.  The  question  is,  whether  the  lien  was  not  lost  before 
that  scire  facias  issued  in  1830?  because  more  than  five  years  had 
elapsed  from  the  date  of  the  judgment,  on  the  llth  of  November 
1822  ;  and  because  the  fieri  facias  on  the  rule  to  open  the  judgment 
had  been  returned  not  executed.  By  the  law,  a  rule  to  stay  pro- 
ceedings for  one  purpose,  stays  the  proceedings  for  all  purposes  ;  and 
this  would,  independently  of  any  settled  rule,  be  the  case  where 
they  are  stayed  for  the  purpose  of  ascertaining  the  amount  really 
due.  The  act  of  the  26th  of  March  1827,  has,  however,  established 
one  exception  to  this  :  in  section  third,  it  is  enacted,  that  "  no  order 
or  rule  of  court,  or  any  other  process  or  proceeding  thereon,  shall 
have  the  effect  of  obviating  the  necessity  of  a  revival  in  the  manner 
herein  prescribed."  This  seems  to  recognize,  that  theretofore  an 
order  or  rule  of  court  might  have  had  that  effect.  That  law  was 
made  to  confine  the  continuance  of  liens  thereafter  to  the  strict  let- 
ter of  the  act  of  assembly.  The  second  section  also  recognizes  that 
judgment  had  before  that  time  been  kept  in  force  by  a  liberal  con- 
struction in  favour  of  their  liens.  We  are  of  opinion,  then,  that,  al- 
though since  the  act  of  1827  the  lien  would  not  be  preserved  by  a 
rule  tying  up  the  proceedings  in  a  judgment  issued,  yet  before  that 
it  would  have  been,  and  that  the  judgment  of  the  common  pleas 
was  right. 

It  has  been  objected  that  this  motion  and  rule  to  stay  proceedings, 
were  entered  under  entry  of  this  execution  in  the  execution  docket, 
and  not  as  the  entry  of  the  original  action  in  the  appearance  docket. 
Where  no  execution  has  issued,  such  motion  and  rule  would  be  en- 
tered to  the  suit  in  the  continuance  docket.  Where  an  execution  has 
issued,  and  one  object  of  the  motion  is  to  stay  the  proceedings  on 
the  execution,  the  motion  and  rule  are  often  entered  in  the  execu- 
tion docket ;  perhaps,  in  some  counties,  it  is  generally  so  entered.  It 
is  true,  when  the  issue  is  formed,  and  a  trial  had,  the  whole  would 
be  transferred  to  the  appearance  and  continuance  docket.  It  was 
said,  the  execution  docket  was  no  part  of  the  record ;  but  this,  I  think, 
was  said  without  reflection :  the  discharge  of  the  debt  by  levy  and  sale 


396  SUPREME  COURT  [Lancaster, 

[Pricker's  Appeal.] 

appears  on  that  docket ;  and  if  the  money  is  paid  after  execution,  and 
without  a  sale,  that  appears  generally,  if  not  always,  on  the  execu- 
tion docket.  On  that  docket,  the  plaintiff,  or  his  attorney  writes  the 
satisfaction  :  and  we  find  it  said,  that  the  writ,  new  pleas  and  execu- 
tions are  the  record  ;  and  we  find  it  said,  that  the  docket  is  the  record  ; 
both  assertions  are  partially  true — they  are  both  together  the  whole 
record.  The  pleas  are  not  found  except  on  the  docket,  in  most  cases ; 
the  judgment  is  found  only  on  the  docket ;  and  I  have  said,  satis- 
faction is  generally  only  found  there.  The  rules  to  take  deposi- 
tions, and  every  other  rule  in  the  progress  of  the  cause,  are  found  on 
some  of  the  dockets.  It  is  true,  the  execution  itself,  where  the  party 
claims  or  defends  under  some  act  of  the  officer  under  it,  must  be  pro- 
duced if  possible  ;  if  lost,  we  produce  the  docket  instead  of  it. 

This  is  not  like  the  case  of  Black  v.  Dobson,  or  any  case  of  a 
judgment  bond  entered  up  by  the  plaintiff,  who  is  bound,  by  positive 
enactment,  to  make  his  entries  effecting  that  judgment,  in  a  pro- 
per place.  It  is  the  act  of  the  court,  in  tying  up  this  judgment,  and 
we  should  make  sad  work  if  all  the  entries  in  the  execution  docket 
were  declared  apocryphal.  All  proceedings  after  judgment  are  to 
be  found,  in  ninety-nine  cases  out  of  a  hundred,  in  that  docket. 

It  would  seem  the  issue  directed  between  the  Bank  and  *Miller,  is 
not  yet  tried.  The  money  can  not  be  kept  locked  up  for  ever. 
If  the  parties  do  not  proceed  to  trial,  the  court  ought  to  permit  Fricker, 
who  is  next  entitled  to  the  money,  to  appear  as  defendant,  and  rule 
plaintiff  to  a  trial. 

Judgment  for  Heister,  for  1191  dollars  and  8  cents  ;  and  affirmed 
for  the  rest. 


Whitehill  against  The  Bank. 

The  want  of  an  affidavit  by  the  appellant,  in  the  case  of  a  decree  distributing  the 
proceeds  of  a  sheriff's  sale  of  land,  is  fatal  to  the  appeal  An  affidavit  by  his  attor- 
ney and  agent  will  not  do. 

APPEAL  from  the  court  of  common  pleas  of  Dauphin  county. 

That  court,  on  the  8th  of  September  1829,  made  a  decree  distribut- 
ing the  money  raised  by  the  sale  of  the  real  estate  of  Richard  Jfcf. 
Cram,  from  which  Whitehill  appealed,  and  his  attorney  made  the 
affidavit  that  the  appeal  was  not  taken  for  delay.  This  appeal  was 
entered  in  this  court  to  May  term  1830,  and  now,  the  9th  of  May 
1832,  Elder  moved  to  quash  the  appeal. 

Elder,  for  the  motion. 

The  affidavit  must  be  by  the  party.     Such  an  affidavit  is  filed, 


May  1833.]  OF  PENNSYLVANIA.  397 

[Whitehill  v.  The  Bank.] 

but  made  long  out  of  time ;  it  is  dated  the  13th  of  January  1 832,  and 
filed  the  30th  of  the  same  month,  nearly  two  years  after  the  appeal 
was  in  this  court.  An  affidavit  by  counsel  is  insufficient.  Purd.  Dig. 
268  ;  1  Penns.  Rep.  421. 

An  appeal  does  not  lie  when  facts  are  in  dispute.  These  are  to 
be  tried  by  jury. 

M'Cormick  and  Douglass,  attorney-general,  contra. 

A  new  recognizance  is  allowed  after  an  appeal  is  taken,  and  why 
not  a  new  affidavit  1  13  Serg.  fy  Rawle  104.  The  motion  ought 
to  have  been  made  at  the  first  court ;  it  is  now  too  late,  nor  is  an 
affidavit  necessary.  Purd.  Dig.  619  (Edit.  1824). 

PER  CURIAM. — The  want  of  an  affidavit  by  the  appellant  is  fatal. 
Appeal  quashed. 


Ebright  against  The  Bank. 

A  judgment  the  lien  of  which  was  preserved  by  execution  and  levy  on  land  at  the 
time  of  the  passage  of  the  acts  of  the  26th  of  March  1827  and  the  23d  of  March  1829, 
is  required  by  those  acts  to  be  revived  within  the  term  of  one  year  from  the  date  of 
the  latter  act ;  and  if  not  revived  in  that  time,  the  lien  expires  ;  and  this,  although 
execution  was  out  upon  it  at  the  time,  and  a  sale  made  of  the  land  in  six  days  only  after 
the  term  in  the  act  had  expired. 

Where  judgment  is  obtained  against  one  who  had  taken  the  benefit  of  the  insolvent 
laws,  after  his  discharge,  and  a  sale  is  made  of  land  which  was  his  when  he  was  dis- 
charged, under  such  judgment  the  sale  is  only  of  what  interest,  if  any,  that  remained 
in  him,  and  the  judgment  creditor,  and  not  his  assignee  or  trustee,  is  entitled  to  the 
proceeds  of  the  sale. 

APPEAL  from  the  decree  of  the  court  of  common  pleas  of  Dau- 
phin county,  distributing  the  proceeds  raised  by  a  sheriff's  sale  of  the 
real  estate  of  Henry  Meek. 

The  money  was  claimed  by  Jacob  Meek  on  the  judgment  of  Jacob 
Ebrighfs  administrators,  against  Henry  Meek  and  Jacob  Meek,  which 
Jacob,  who  was  the  surety  of  Henry,  had  paid,  and  the  court  had 
ordered  it  to  be  marked  for  his  use.  The  judgment  was  entered  on 
the  25th  of  June,  with  a  stay  of  execution  to  the  1st.  of  December 
1817;  a  fieri  facias  issued  upon  it  to  February  term  1818,  which  was 
levied  on  the  land  which  was  afterwards  sold.  A  venditioni  exponas 
issued  to  October  term  1818,  which  was  returned  stayed  by  plaintiff's 
attorney,  and  an  alias  venditioni  exponas  issued  to  April  term  1830,  on 
which,  on  the  29th  of  March  1830,  the  land  levied  on  was  sold  for 
251  dollars.  The  money  was  also  claimed  on  two  judgments  of  the 
Philadelphia  Bank  against  Henry  Meek,  obtained  on  the  8th  day  of 
December  1817,  revived  by  scire  facias  on  the  27th  of  November  1826. 


398  SUPREME  COURT  [Lancaster, 

[Ebright  T.  The  Bank.] 

On  the  13th  of  August  1817,  Henry  Meek  was  discharged  under  the 
insolvent  law  by  the  court  of  common  pleas  of  Dauphin  county ;  but 
no  formal  assignment  was  made  by  him  to  the  trustees  appointed  by 
the  court,  and  the  trustees  had  not  given  bond. 

The  court  of  common  pleas  decreed  the  money  to  the  Harrisburg 
Bank,  which  is  the  owner  of  the  two  judgments  in  favour  of  the  Phi- 
ladelphia Bank;  and  Jacob  Meek  appealed. 

Elder,  for  the  appellant. 

The  term  of  two  years  was  allowed  by  the  act  of  the  26th  of  March 
1827,  within  which  to  revive  judgments,  the  liens  of  which  had  been 
continued  by  previous  laws,  without  suing  out  a  scire  facias.  The 
act  of  the  23d  of  March  1829,  extended  the  time  for  one  year  from 
the  date  of  that  act.  Purd.  Dig.  422,  423.  The  sale  having  been 
made  on  the  29th  of  March  1830,  the  time  allowed  by  the  last  act 
had  expired  six  days  when  the  sale  was  made.  But  he  contended 
that  the  case  was  not  within  the  spirit  of  these  acts,  as  the  judgment 
was  at  the  time  working  its  own  satisfaction,  and  great  and  unne- 
cessary inconvenience  would  have  resulted  from  requiring  the  party 
in  such  circumstances  to  issue  a  scire  facias.  He  referred  to  13  Serg. 
fy  Rawle  144. 

But  if  the  court  should  be  of  opinion  that  this  judgment  had  lost 
its  lien,  he  contended  that  the  proceeds  of  the  sale  must  go  to  the 
the  trustees  or  assignees  of  Meek,  under  the  insolvent  laws,  as  the 
bank  judgments  were  obtained  after  his  discharge;  and  referred  to 
Gray  v.  Hill,  10  Serg.  <$•  Rawle  436. 

Shock,  for  the  appellee. 

The  act  of  assembly  is  positive  in  its  terms,  and  admits  of  no  con- 
struction, by  which  its  plain  letter  can  be  avoided. 

He  contended,  however,  that  it  was  immaterial  whether  the  pro- 
perty of  Henry  Meek  in  (he  bond  sold  was  divested  by  his  discharge 
as  an  insolvent  or  not.  That  was  a  question  which  concerned  (he 
purchaser  at  sheriff  sale  only.  The  bank  judgments  were  obtained 
against,  and  bound  whatever  interest  Meek  had  in  the  bond  ;  it  was 
that  only  which  was  sold,  and  the  proceeds  for  which  were  in  court. 
His  assignees,  whatever  claim  they  might  have  to  the  land,  had  no 
claim  to  the  money.  Friedly  v.  Sheetz,  9  Serg.  <$•  Rawle  156. 

The  opinion  of  the  Court  was  delivered  by 

ROGERS,  J. — It  is  notorious,  that  the  liberal  construction  which 
the  courts  gave  to  the  act  of  1798,  in  Young  v.  Taylor,  2  Binn.  218  ; 
Pennock  v.  Hart,  8  Serg.  fy  Rawle  369  ;  and  The  Commonwealth  for 
the  use  of  PennocKs  Executors  v.  M'Kerper,  13  Serg.  fy  Rawle  144  ; 
was  the  principal  cause  which  gave  rise  to  the  supplement,  passed 
the  20th  of  March  1827.  In  language  which  it  is  difficult  to  misap- 
prehend, the  legislature  have  made  a  scire  facias  necessary,  in  all 
cases  where  such  a  writ  can  issue.  We  have  only  to  inquire,  whether 


May  1833.]  OF  PENNSYLVANIA.  399 

[Ebright  v.  The  Bank.] 

a  stire  facias  may  have  issued  to  continue  the  lien  ;  and  I  can  see  no 
legal  objection  to  issuing  such  a  writ,  although  the  plaintiff  may 
have  proceeded  to  levy  on  the  defendant's  property,  whether  real  or 
personal.  The  words  of  the  first  section  are  sufficiently  comprehen- 
sive, to  cover  the  whole  ground.  No  judgment  shall  continue  a  lien 
on  real  estate  for  a  longer  period  than  five  years  from  which  the 
judgment  may  be  entered  or  rendered,  unless  revived  by  agreement 
of  the  parties,  or  a  writ  of  stire  facias  to  renew  the  same  be  sued  out, 
notwithstanding  an  execution  may  have  been  issued  within  a  year 
and  a  day.  And  to  make  the  meaning  still  more  certain,  in  the  third 
section  the  legislature  says,  that  no  order  or  rule  of  court,  or  any 
other  process  or  proceeding  thereof,  shall  have  the  effect  of  obviating 
the  necessity  of  the  revival  of  the  judgment  in  the  manner  described. 
That  some  inconvenience  may  arise  in  a  literal  compliance  with  the 
act,  may  be  probable;  but  this  consequence  is  for  the  legislature, 
and  not  for  the  court,  to  consider.  If  we  listen  to  these  exceptions, 
others  will  soon  arise,  which  will  be  said  to  come  within  the  same 
principle ;  and  the  mischief  and  uncertainty  which  the  supplement 
was  intended  to  remedy  will  be  again  introduced.  The  rule  which 
the  legislature  have  prescribed  has  the  merit  of  simplicity,  and 
should  not  be  departed  from,  except  in  a  case  of  necessity ;  where, 
for  instance,  from  legal  principle,  a  scire  facias  cannot  properly  issue. 
The  latitude  of  construction  in  which  the  courts  have  indulged,  as 
to  the  original  act  of  1798,  has  been  often  regretted  as  a  principal 
source  of  legal  strife,  uncertainty  and  difficulty. 

It  would  be  useless  to  decide  the  effect  of  Meck's  discharge,  for 
that  cannot  alter  the  disposition  of  the  proceeds  of  the  sale,  however 
it  may  affect  the  vendee  of  the  sheriff.  The  purchaser  has  paid  for 
the  interest  Meek  had  in  the  land,  whatever  that  may  be,  and  the 
money  having  been  brought  into  court,  must  be  applied  in  the  order 
of  time  of  the  liens  existing  upon  the  interest,  whether  real  or  sup- 
posed, according  to  their  priority.  It  would  be  improper  in  this  stage 
of  the  proceeding  to  inquire  into  the  title  of  Meek.  That  is  a  question 
which  must  be  decided  in  a  suit  between  the  trustees  and  the  pur- 
chaser. Here  it  is  of  no  consequence,  whether  the  title  is  good  or 
bad  ;  it  is  sufficient  that  the  land  was  sold  as  the  property  of  Meek. 
Jacob  Meek  having  died,  it  is  estopped  to  deny,  that  he  had  such  an 
interest  as  was  subject  to  the  lien  of  judgments  in  the  order  of  time. 
The  property  was  seized,  condemned  and  sold  as  the  property  of 
Henry  Meek ;  and  as  such,  the  proceeds  must  be  distributed  among 
the  creditors,  without  regard  to  his  title. 

Judgment  affirmed. 


400  SUPREME  COURT  [Lancaster, 


Bachman's  Road. 

A  review  of  a  road  is  a  matter  of  right ;  but  upon  the  report  of  the  reviewers  having 
been  made,  the  court  may,  at  their  discretion,  adopt  it  or  the  report  of  the  viewers. 

CERTIORARI  to  the  quarter  sessions  of  Lancaster  county. 

Case  of  the  road,  in  Bart  and  Strasburg  townships,  Lancaster 
county,  leading  from  Bachmarfs  to  TrouTs. 

In  this  case  a  petition  was  presented  to  the  court  at  November 
sessions  1831,  and  a  view  granted,  and  return  made  by  viewers  to 
January  session  1832 :  on  the  16th  of  January,  same  year,  "  read  and 
approved  nisi"  At  the  April  sessions  following,  a  petition  was  pre- 
sented praying  for  a  review,  which  was  granted ;  and  a  report  made 
to  August  session  following,  on  the  first  day  of  the  term,  by  the  re- 
viewers, declaring  that  there  was  no  occasion  for  such  road  as  that 
returned  and  reported  by  the  viewers,  on  the  order  for  a  view,  which 
was  on  that  day  "  read  and  confirmed  nisi."  And  the  court  after- 
wards, on  the  27th  of  the  same  month,  without  any  notice  to  any  of 
the  petitioners  for  the  review  or  their  counsel  whose  name  was  in- 
dorsed on  the  back  of  their  petition,  confirmed  the  view  made  to  the 
court  on  the  16th  of  January,  and  set  aside  the  confirmation  of  the 
report  and  return  of  the  reviewers  made  to  the  August  term. 

Frazier,  pro  querente. 
Hopkins,  contra. 

PER  CURIAM. — A  review  is  a  matter  of  right;  but  although  granta- 
ble  at  the  instance  of  a  party,  it,  as  well  as  the  view,  is  but  to  inform 
the  conscience  of  the  court,  who  may  adopt  the  report  of  the  viewers, 
or  of  the  reviewers  at  discretion ;  as  was  held  in  the  case  of  Buckwalter's 
Road,  3  Serg.  <$»  Rawle  236.  As,  then,  the  party  at  whose  instance 
the  review  was  granted,  had  no  right  to  insist  on  having  the  report 
of  the  reviewers  confirmed  as  a  matter  of  course  in  the  absence  of  a 
special  objection  to  it,  it  was  not  error  to  adopt  the  one  report  with- 
out exceptions  filed  to  the  other. 

Proceedings  affirmed. 


May  1833.]  OF  PENNSYLVANIA.  401 


Pennock  against  Freeman. 

A  decree  for  specific  performance  of  an  agreement  respecting  the  purchase  and  sale 
of  land,  is  of  grace  and  not  of  right.  It  rests  in  the  discretion  of  the  chancellor,  who 
would,  for  any  thing  inequitable,  withhold  his  assistance  and  leave  the  parties  to  their 
legal  remedies  on  the  agreement.  An  ejectment  may  be  sustained  to  enforce  an 
equity,  but  only  as  a  substitute  for  a  bill,  and  subject  to  all  those  considerations  by 
which  a  claim  to  have  the  land  itself  may  be  defeated. 

The  fiduciary  relation  which  exists  between  an  administrator  and  heir,  makes  them 
so  far  privies  in  representation,  that  the  act  of  the  administrator  will  bind  the  heir, 
as  that  of  his  trustee. 

An  administrator  necessarily  succeeds  to  the  decedent's  right  to  rescind  a  contract 
for  the  purchase  and  sale  of  land  by  recovering  back  the  purchase  money,  or  he  may 
leave  the  heir  to  affirm  it  by  insisting  on  a  conveyance. 

Two  persons  entered  into  a  parol  agreement  to  purchase  a  tract  of  land,  which  was 
afterwards  purchased,  and  a  deed  taken  in  the  name  of  one  of  them :  the  other  died ; 
it  was  held  that  his  administrator  might  maintain  an  action  against  the  survivor  to 
recover  back  the  money  advanced  by  his  intestate,  on  the  ground  that  the  contract 
was  vitiated  in  the  origin  by  the  fraud  of  the  defendant,  the  surviving  party.  But  in 
such  action  the  contract  must  be  wholly  'disaffirmed.  The  measure  of  damages  shall 
not  be  estimated  from  any  profit  which  was  made  upon  a  subsequent  sale  of  the  land. 

Against  a  right  of  action,  dependent  on  the  existence  of  a  secret  fraud,  the  statute 
of  limitation  runs  but  from  the  period  of  discovery. 

Under  the  forty-second  rule  of  the  circuit  court,  if  a  witness  resides  more  than  forty 
miles  from  the  court,  his  deposition  may  be  read,  although  he  has  not  been  served 
with  a  subpcena. 

Testimony  taken  in  another  state  upon  a  joint  and  several  commission,  may  be  read 
in  evidence,  although  the  commissioner  named  by  the  defendant  did  not  attend  at  the 
execution  of  the  commission. 

APPEAL  from  the  circuit  court  of  Lancaster  county. 

This  was  an  action  on  the  case  by  George  Yentzer  administrator 
of  Jacob  Pennock  deceased,  for  the  use  of  Franklin  W.  Pennock  his 
son  and  heir  at  law,  against  Clarkson  Freeman,  in  which  the  decla- 
ration sets  out  specially  the  cause  of  action. 

"  Clarkson  Freeman,  late  of  the  said  county,  doctor  of  medicine, 
was  attached  to  answer  George  Yentzer,  administrator  de  bonis  non  of 
Jacob  Pennock  late  of  the  borough  of  Lancaster,  deceased,  for  the 
use  of  Franklin  W.  Pennock,  a  minor  son  and  only  heir  of  the  said 
Jacob  Pennock  deceased,  who  sues  for  his  use  by  his  guardian  John 
Yentzer,  in  a  plea  of  trespass  on  the  case ;  whereupon  the  said 
George  Yentzer,  administrator  as  aforesaid,  for  the  use  aforesaid,  com- 
plains, for  that  whereas,  on  or  about  the  10th  day  of  November,  in 
the  year  of  our  Lord  1610,  at  the  county  aforesaid,  in  a  certain  dis- 
course which  they,  the  said  Clarkson  Freeman  and  the  said  Jacob 
Pennock,  then  and  there  had  and  held,  it  was  then  and  there  agreed, 
by  and  between  the  said  Clarkson  and  Jacob,  as  follows,  to  wit  that 
they  would  join  in  the  purchase  (each  paying  one  half)  of  a  tract  of 
land,  situate  in  the  state  of  Ohio,  with  a  sawmill  thereon  erected, 
containing  twenty-five  acres  of  land,  be  the  same  more  or  less,  with 
3  A 


402  SUPREME  COURT  [Lancaster, 

[Pennock  v.  Freeman.] 

the  rights,  members,  and  appurtenances  thereto  belonging,  at  and 
for  the  sum  of  1951  dollars,  the  deed  for  the  same  to  be  taken  in  the 
name  of  Clarkson  Freeman  alone,  to  be  held  nevertheless  by  him,  as 
to  one  moiety  thereof,  in  trust  for  the  said  Jacob  Pennock  and  his 
heirs  in  fee,  which  said  promise  and  undertaking,  being  so  as  afore- 
said made  and  concluded  between  the  said  Clarkson  and  Jacob,  the 
said  purchase  was  accordingly  made,  and  a  deed  was  executed  by  the 
vendor  to  Clarkson  Freeman  alone,  (in  trust  nevertheless  as  to  a 
moiety  thereof  as  aforesaid)  and  a  moiety  or  half  part  of  the  said 
purchase  was  paid  by  the  said  Jacob  Pennock  in  the  fulfilment  of  the 
promise  on  his  part.  And  the  said  Clarkson  Freeman,  being  so  as 
aforesaid  seised  and  possessed  of  the  said  land  in  trust  as  to  one 
moiety  to  the  use  of  the  said  Jacob  Pennock  and  his  heirs,  then  and 
there,  in  the  same  discourse,  it  was  agreed  and  understood,  that  in 
case  the  said  Jacob  Pennock  in  his  lifetime, or  his  heirs  and  legal  repre- 
sentatives after  his  death,  would  release  to  the  said  Clarkson  and  his 
heirs,  the  equity  of  the  said  Jacob  and  his  heirs  in  the  said  land,  and 
all  the  right,  title  and  interest  of,  in  and  to  the  same  ;  that  then  and 
in  that  case,  in  consideration  thereof,  that  he  the  said  Clarkson 
would  pay  to  the  said  Jacob  Pennock,  his  heirs,  executors,  adminis- 
trators or  assigns,  as  much  money  as  the  one  half  of  the  said  lands, 
with  the  appurtenances,  is  reasonably  worth,  when  he  should  be 
thereunto  afterwards  requested.  And  the  said  Jacob  in  his  lifetime, 
and  the  said  George  Yentzer,  administrator  aforesaid  to  the  use 
aforesaid,  since  his  death,  aver,  that  they  reasonably  deserve  to  have 
for  the  said  moiety  of  the  said  land,  the  sum  of  5000  dollars,  lawful 
money  of  the  United  States.  And  the  said  George  further  avers,  that 
he  and  the  said  guardian,  John  Yentzer,  before  the  issuing  of  the 
original  writ  in  this  cause,  to  wit,  on  the  7th  day  of  August,  in  the 
year  of  our  Lord  1821,  at  the  county  aforesaid,  tendered  to  the  said 
Clarkson  Freeman,  a  release  of  all  the  equity,  right,  title,  interest  and 
claim  of  the  heirs  of  the  said  Jacob  Pennock  deceased,  of,  in  and  to 
the  said  moiety  of  the  said  land,  and  then  and  there  demanded  pay- 
ment of  the  said  Clarkson  for  the  same.  Yet  the  said  Clarkson,  his 
promise  and  undertaking  in  no  wise  regarding,  but  contriving  and 
fraudulently  intending  to  deceive  and  defraud  the  said  Jacob  Pen- 
nock in  his  lifetime,  and  the  said  George  Yentzer,  administrator  as 
aforesaid,  to  the  use  aforesaid,  since  his  death,  the  aforesaid  sum  of 
money  or  any  part  thereof  to  the  said  George  Yentzer,  administrator 
as  aforesaid,  to  the  use  aforesaid  hath  not  paid,  although  to  pay  the 
same  he,  the  said  Clarkson,  by  the  said  George,  was  frequently  re- 
quested ;  but  to  pay  the  same  or  any  part  thereof,  he  the  said  Clark- 
son  hitherto  hath  refused,  and  still  doth  refuse,  to  the  damage  of  the 
said  George,  to  the  use  aforesaid,  5000  dollars,  and  therefore  he 
brings  suit. 

"  And  whereas,  also  afterwards,  to  wit  the  day  and  year  last  afore- 
said, the  said  Clarkson  Freeman,  at  the  county  aforesaid,  was  in- 
debted to  the  said  George  Yentzer,  administrator  as  aforesaid,  to  the 


May  1833.]  OF  PENNSYLVANIA.  403 

[Pennock  v.  Freeman.] 

use  aforesaid,  in  the  sura  of  other  5000  dollars,  lawful  money  of  the 
United  States,  for  money  which  he  the  said  Clarkson  freeman  before 
that  time  had  had  and  received,  to  the  use  of  the  said  George  Yent- 
zer, administrator  as  aforesaid,  to  the  use  aforesaid ;  and  being  so 
indebted,  he  the  said  Clarkson  Freeman,  in  consideration  thereof, 
afterwards,  to  wit  the  said  7th  day  of  August  in  the  year  of  our 
Lord  1821,  at  the  county  aforesaid,  undertook,  and  then  and  there 
faithfully  promised  the  said  George  Yentzer,  administrator  aforesaid, 
to  the  use  aforesaid,  to  pay  him  the  said  sum  of  money  last  mention- 
ed when  he  should  be  afterwards  thereto  requested.  Nevertheless, 
the  said  Clarkson  Freeman,  his  promise  as  aforesaid  not  regarding, 
but  contriving  and  fraudulently  intending  the  said  George  Yentzert 
administrator  as  aforesaid,  to  the  use  aforesaid,  in  this  behalf  craftily 
and  subtilely  to  deceive  and  defraud,  the  aforesaid  sum  of  money 
or  any  part  thereof,  to  the  said  George  Yentzer,  to  the  use  aforesaid, 
hath  not  paid,  although  to  pay  the  same,  the  said  Clarkson  Freeman 
by  the  said  George,  the  day  and  year  last  aforesaid,  and  at  divers 
other  times,  at  the  county  aforesaid,  was  requested  ;  but  to  pay  the 
same  or  any  part  thereof  to  the  said  George,  to  the  use  aforesaid,  he 
the  said  Clarkson  hitherto  hath  refused,  and  still  doth  refuse,  to  the 
damage  of  the  said  George  Yentzer,  administrator  as  aforesaid,  to  the 
use  aforesaid,  5000  dollars,  like  lawful  money,  and  therefore  he 
brings  suit,  &c.  And  brings  here  into  court  the  letters  of  adminis- 
tration, which  testify  the  granting  of  the  said  administration  to  the 
said  George  Yentzer" 

The  pleas  of  the  defendant  were  non  assumpsit,  and  non  assumpsit 
infra  sex  annos. 

During  the  progress  of  the  trial  the  plaintiff  offered  in  evidence 
the  deposition  of  a  witness  who  did  not  live  in  the  county,  nor  within 
forty  miles  of  the  court,  and  who  had  not  been  subpo3naed,  which 
was  objected  to,  and  the  objection  was  overruled,  and  exception 
taken  by  the  defendant.  He  also  offered  in  evidence  the  testimony 
of  a  witness  taken  in  another  state  upon  a  commission,  which  was 
objected  to,  on  the  ground  that  the  commissioner,  named  by  him, 
did  not  attend  at  the  execution  of  the  commission.  This  objection 
was  also  overruled,  and  exception  taken. 

The  following  points  put  to  the  court,  and  the  errors  assigned, 
will  sufficiently  explain  the  facts  of  the  case,  to  understand  the  prin- 
ciples decided. 

The  court  is  respectfully  requested  to  charge  the  jury,  and  file 
their  charge  of  record,  on  the  following  points,  on  the  part  of  the 
defendant. 

1.  This  suit  is  an  action  of  assumpsit  on  an  alleged  promise  by 
defendant  to  pay  certain  money,  and  the  declaration  alleges  that 
"  in  the  same  discourse  it  was  agreed  and  understood  that  in  case 
the  said  Jacob  Pennock,  in  his  lifetime,  or  his  heirs  and  legal  repre- 
sentatives after  his  death,  would  release  to  the  said  Clarkson  and  his 
heirs,  the  equity  of  the  said  Jacob  and  his  heirs  in  the  said  land ; 


404  SUPREME  COURT  [Lancaster 

[Pennock  v.  Freeman.] 

and  all  the  right,  title  and  interest  of,  in  and  to  the  same,  that  then 
and  in  that  case,  in  consideration  thereof,  that  he,  the  said  Clarkson, 
would  pay,  &c."  There  must  be  full  proof  of  this  agreement,  and 
proof  of  only  part  is  not  a  compliance  with  the  allegation  in  the  de- 
claration, and  they  cannot  recover  in  this  action. 

2.  That  to  support  this  action,  a  breach  of  the  contract  by  the  de- 
fendant, during  the  lifetime  of  Jacob  Pennock,  must  be  shown,  by 
proof,  that  a  demand  was  made  by  the  said  Jacob  in  his  lifetime,  of 
the  said  Clarkson,  to  convey  to  him  (the  said  Jacob)  one  moiety  of 
the  land  alleged  to  have  been  purchased  in  partnership,  and  the  re- 
fusal of  the  said  Clarkson  Freeman  to  convey  the  same. 

3.  That  to  support  this  action,  proof  must  be  made  of  a  demand 
of  half  the  value  of  the  land  by  Jacob  Pennock,  in  his  lifetime,  of  the 
said  Clarkson,  and  an  offer  by  him  (the  said  Jacob)  to  release  his 
equity  in  the  said  lands,  to  the  said  defendant,  and  proof  of  a  tender 
made  of  the  said  release,  by  the  said  Jacob  Pennock,  in  his  lifetime, 
to  the  said  Clarkson  Freeman,  at  the  time  of  the  demand  of  the  mo- 
ney, or  amount  of  said  half  value  of  the  land. 

4.  That  a  demand  by  the  guardian  of  the  heir  of  Jacob  Pennock, 
after  the  decease  of  the  said  Jacob^  of  the  said  Clarkson  Freeman, 
to  convey  one  moiety  of  the  said  land  to  the  said  heir,  and  a  ten- 
der at  the  same  time  of  a  release  of  all  the  interest  of  the  said  heir, 
in  the  said  land,  signed  by  the  said  guardian,  even  if  duly  proved, 
cannot  avail  the  plaintiff  to  recover  damages  in  this  cause  ;  because 
such  a  release,  drawn  by  a  guardian,  affecting  the  rights  of  his  ward, 
in  relation  to  the  real  estate  of  the  said  ward,  is  not  good  and  valid 
in  law ;  and  therefore  the  said  release,  or  a  tender  of  the  same,  does 
not  import  a  consideration,  sufficient  in  law,  to  support  a  promise  to 
pay  money. 

A  verdict  was  rendered  for  the  plaintiff  for  1753  dollars  and  33 
cents.  A  motion  was  made  by  the  defendant  for  a  new  trial,  which 
was  overruled  ;  and  he  appealed  to  this  court,  and  assigned  the  fol- 
lowing reasons. 

1.  The  above  suit  is  brought  to  recover  the  amount  due  to  Frank- 
lin W.  Pennock,  the  son  and  heir  of  Jacob  Pennock  deceased,  as  set 
out  in  the  declaration  ;  and  this  suit  cannot  be  maintained  without 
proof  of  a  release,  executed  and  tendered  by  the  said  Franklin  W. 
Pennock,  of  his  moiety  of  the  land.     The  release  of  the  guardian  of 
the  said  Franklin   W.  Pennock,   is  entirely  insufficient;  the  said 
Franklin  W.  Pennock  was  of  full  age,  for  more  than  one  year  prece- 
dent to  the  trial. 

2.  The  court  erred  in  charging  the  jury,  that,  although  the  action 
could  not  be  supported  under  the  testimony  in  the  cause,  upon  the 
first  count  in  the  declaration,  the  allegations  in  that  count  not  being 
sustained  by  the  evidence,  yet  that  plaintiff  was  entitled  to  recover 
on  the  second  count  of  the  declaration,  the  amount  of  moneys  ad- 
vanced by  Jacob  Pennock  in  his  lifetime,  in  1810,  to  Dr  Freeman,  on 
account  of  the  purchase,  if  the  jury  believe  there  was  fraud  and  cir- 


May  1833.]  OP  PENNSYLVANIA.  405 

[Pennock  v.  Freeman.] 

cumvention  practised  by  defendant,  in  procuring  Pennock  to  join  in 
the  purchase. 

3.  The  court  erred  in  receiving  the  deposition  of  Daniel  Moore, 
esquire,  and  the  papers  accompanying  it ;  and    in  admitting  the 
commission,  and  deposition  of  Mary  Moran  taken  under  it. 

4.  The  evidence  of  the  sale  of  an  undivided  moiety  of  the  tract 
of  land,  by  Dr  C.  Freeman  to  Peter  Good,  for  1700  dollars,  in  1814, 
and  the  deed  for  the  same,  were  improperly  admitted. 

5.  There  was  no  evidence,  on  the  trial  of  the  cause,  that  Jacob 
Pennock  ever  paid  his  full  portion  of  the  purchase  money.     The  only 
evidence  that  was  given,  was,  that  he  paid  700  dollars  ;  and  there 
was  evidence  adduced  by  plaintiff  to  show,  that  a  note  in   the 
Farmer's  Bank  for  600  dollars  was  discounted,  for  the  mutual  use  of 
defendant  and  the  said  Jacob  Pennock,  and  that  defendant  had  to 
pay  the  whole  of  it,  after  Pennock's  death.     There  was  also  evidence 
to  show,  that  the  whole  tract  has  been  entirely  unproductive  since 
1814,  and  without  any  means  by  which  it  can  be  made  productive  ; 
and  the  actual  value  of  the  whole  tract,  at  this  time,  does  not  ex- 
ceed 500  dollars. 

6.  The  plea  of  non  assumpsit  infra  sex  annos  precluded  plaintiff 
from  recovering  the  amount  of  moneys  alleged  to  have  been  ad- 
vanced in  1810,  for  which  verdict  was  rendered. 

7.  The  second  count  in  the  declaration  is  for  money  had  and  re- 
ceived, for  the  use  of  the  administrator  as  such,  who  sues  for  the  use 
of  Franklin  W.  Pennock ;  and  evidence  of  moneys  received  in  the 
lifetime  of  Jacob  Pennock  from  him,  will  not  support  this  count. 

8.  The  first  count  is  in  affirmance  of  the  contract,  and  the  sec- 
ond is  in  disaffirmance  of  the  contract.     Neither  count,  it  is  believed, 
can  be  supported.     The  first  could  not  be,  as  the  court  declared ;  and 
as  the  verdict  is  general,  it  is  erroneous  and  cannot  be  supported. 

9.  The  verdict  is  contrary  to  the  weight  of  the  evidence  and  the 
justice  of  the  case. 

Rogers  and  Champneys,  for  appellants. 
Jenkins  and  Hopkins,  for  appellee. 

The  opinion  of  the  Court  was  delivered  by 

GIBSON,  C.  J. — Though  it  was  held  when  the  cause  was  here 
before  (a)  J,hat  a  suit  might  be  maintained  by  the  administrator,  it 

(a)     Freeman  against  Pennock. 

Opinion  of  the  Supreme  Court,  delivered  by  Chief  Justice  Tilghman,  May  28, 182J. 
Gibson  and  Duncan,  Justices,  assented.    3  Penns.  Rep.  317,  in  note. 

TILGHMAN,  C.  J. — This  is  an  action  on  the  case  founded  on  an  agreement  alleged 
by  the  plaintiff  to  have  been  made  between  Jacob  Pennock  the  intestate,  and  Doctor 
Clarkson  Freeman  the  defendant  below,  respecting  the  purchase  of  a  tract  of  land  in 


406  SUPREME  COURT  [Lancaster, 

[Pen nock  v.  Freeman.] 

has  nevertheless  been  argued,  that  a  recovery  by  him  would  leave 
the  defendant  exposed  to  the  ejectment  of  the  heir,  who  would 
not,  it  is  said,  be  estopped  by  a  judgment  to  which  he  was  neither 

the  state  of  Ohio.  Each  party  was  to  pay  a  moiety  of  the  purchase  money,  and  the 
deed  was  to  be  taken  in  the  name  of  Freeman,  who  was  to  hold  one  half  in  trust  for 
Pennock,  and  convey  it  to  him  on  demand.  The  purchase  was  made  according  to 
the  agreement,  the  money  paid  equally  by  the  parties,  and  the  deed  of  conveyance 
executed  to  Freeman  alone,  who  afterwards,  in  the  lifetime  of  Pennock,  refused  to 
acknowledge  the  trust,  or  to  convey  a  moiety  to  Pennock,  though  required  by  him  to 
do  so.  Pennock  left  a  widow,  who  died,  pending  this  suit,  and  one  child,  an  infant. 
Two  bills  of  exception  were  taken  to  evidence  admitted  on  the  trial,  and  one  general 
exception  to  the  charge  of  the  court. 

The  first  exception  was  to  the  admission  of  Jacob  Miller  the  plaintiff,  as  a  witness. 
Previous  to  his  being  offered  as  a  witness,  it  was  proved  that  his  administration  ac- 
count was  settled,  and  he  executed  a  release,  which  divested  him  of  all  interest  in  the 
estate  of  the  intestate,  so  that  his  liability  to  costs  was  the  only  obstacle  to  his  compe- 
tency, and  to  remove  this  objection,  18  dollars  and  12  cents,  costs  which  had  already 
accrued,  were  paid  by  John  Yentzer,  guardian  of  Franklin  W.  Pennock,  the  only  child 
of  the  intestate,  and  a  recognizance  to  the  defendant  in  the  sum  of  1000  dollars  was 
entered  into  by  James  Hopkins  and  William  Jenkins,  esquires,  conditioned  for  their 
payment  of  "  all  costs  incurred  and  to  be  incurred  in  the  prosecution  of  this  suit  to 
the  said  Doctor  C.  Freeman,  and  which  may  accrue  to  him  and  all  the  officers  of  the 
court,  witnesses  produced  by  him,  and  all  others  that  may  be  entitled  to  costs  to  the 
final  determination  of  the  cause,  if  the  same  should  be  determined  in  favour  of  the 
defendant,  the  same  being  legally  taxed  against  the  plaintiff  in  this  cause."  In  the 
argument  on  this  bill  of  exceptions,  many  points  were  made  of  which  it  is  unneces- 
sary to  take  notice,  as  there  is  one  decisive  objection  to  the  plaintiff's  competency,  and 
that  is,  that  inasmuch  as  this  recognizance  covered  those  costs  only  which  should  be 
incurred  on  the  part  of  the  defendant,  the  plaintiff  remained  answerable  for  his  own 
costs,  which,  in  case  of  a  verdict  in  his  favour,  he  would  recover  against  the  defend- 
ant. He  was,  therefore,  immediately  interested  in  the  event  of  the  suit,  and  ought 
not  to  have  been  admitted  as  a  witness.  It  will  be  understood  that  the  court  gives  no 
opinion  whether  the  witness  would  have  been  competent,  if  the  recognizance  had 
been  so  drawn  as  to  include  all  the  costs,  both  of  the  plaintiff  and  defendant. 

The  second  bill  of  exceptions  was  to  the  admission  of  parol  evidence  to  prove  the 
contents  of  a  paper  which  was  once  in  the  possession  of  the  defendant.  The  counsel 
for  the  defendant  objected  to  the  evidence,  because  no  notice  to  produce  it  had  been 
given  to  the  defendant.  The  plaintiff 's  counsel  admit  the  general  rule,  that  notice  is 
necessary,  but  contend  that  the  paper  in  question  was  of  no  importance,  and  created 
no  obligation  ;  that  it  was  the  property  of  the  defendant,  and  might  be  destroyed  by 
him  at  his  pleasure,  and  therefore,  that  it  was  unnecessary  to  give  him  notice  to  pro- 
duce it.  This  paper,  according  to  the  account  given  of  it  by  the  witness  who  proved 
the  contents,  contained  a  statement  in  the  handwriting  of  the  defendant,  of  the 
money  paid  by  the  defendant,  and  by  Jacob  Pennock,  respectively,  towards  the  pur- 
chase of  the  land  in  which  they  were  partners.  It  was  not  signed  by  the  defendant, 
but  was  produced  by  him  to  the  plaintiff. 

Now,  when  it  is  considered,  that  the  parties  were  at  issue  respecting  the  existence 
of  a  partnership,  it  will  appear  at  once,  that  the  paper  was  extremely  important,  be- 
cause it  proved  the  partnership  by  the  written  confession  of  the  defendant.  Whether 
it  created  any  obligation,  and  whether  it  was  the  property  of  the  defendant  and  might 
be  destroyed  by  him  without  blame,  are  questions  of  no  moment.  The  paper  itself 
was  better  evidence  than  parol  testimony  of  its  con  tents,  and  therefore  the  defendant 
should  have  had  an  opportunity  of  producing  it.  It  was  plainly  within  the  rule  which 
required  notice,  and  the  parol  evidence  ought  not  to  have  been  admitted. 

The  defendant's  counsel  proposed  ten  questions  to  the  president  of  the  court  of  com- 
mon pleas,  on  which  they  requested  his  opinion  to  be  delivered  to  the  jury,  and  they 
now  complain  that  several  of  these  questions  were  not  answered. 

That  it  is  error  not  to  answer  a  legal  question  pertinent  to  the  issue,  has  been 
often  decided.  The  counsel  for  the  plaintiff  say,  that  the  charge  of  the  president  con- 
tains an  answer  to  all  the  questions  proposed.  I  rather  incline  to  the  opinion  that  the 
questions  are  not  all  answered  ;  but  that  point  is  unimportant,  as  this  judgment  must 


May  1833.]  OF  PENNSYLVANIA.  407 

[Pennock  v.  Freeman.] 

a  party -nor  privy  ;  and  hence  it  has  been  contended,  that  a  release 
by  the  heir  ought  to  have  preceded  the  administrator's  action. 
The  point  is  made  on  the  assumption  of  a  position  entirely  unten- 

be  reversed  for  other  reasons.  But  as  it  is  often  matter  of  dispute,  whether  the  ques- 
tions proposed  to  the  court  have  been  answered,  I  will  suggest  a  mode  of  proceeding 
in  such  cases,  which  will  prevent  all  possibility  of  dispute,  and  that  is,  to  give  the 
opinion  on  each  question,  in  writing,  immediately  following  the  question.  When  the 
judge,  instead  of  doing  this,  gives  a  general  charge,  in  which  he  intends  to  answer 
all  the  questions  proposed  to  him,  it  may  sometimes  happen  that  there  may  be  an 
omission,  or  it  may  be  doubtful  whether  there  is  an  omission  or  not.  These  doubts 
have  frequently  occurred,  and  pains  should  be  taken  to  prevent  them,  as  they  some- 
times occasion  the  reversal  of  judgments  which  this  court  would  wish  to  support. 

But  other  errors  have  been  assigned  in  the  charge  of  the  president.  These  may  be 
reduced  to  two  points.  Is  this  action  maintainable  by  the  administrator  of  Pennock  ? 
And  if  it  is,  what  should  be  the  measure  of  damages  ? 

1.  The  objection  to  the  action  is,  that  according  to  the  plaintiff's  own  showing, 
there  was  a  resulting  trust  to  Pennock  for  a  moiety  of  the  land  purchased  in  partner- 
ship, and  therefore  there  is  an  equity  in  the  heir,  which  the  administrator  has  no  right 
to  convert  into  personal  property,  by  this  suit  for  damages.     We  have  no  evidence  of 
the  laws  of  the  state  of  Ohio,  but  if  they  recognize  the  same  principles  of  equity  which 
prevail  in  other  states,  there  would  be  an  equity  in  the  heir  of  Pennock,  as  to  a 
moiety  of  the  land  purchased  in  partnership.     Nevertheless,  if  the  agreement  was 
parol  (as  the  evidence  seems  to  indicate),  and  it  was  broken  in  the  lifetime  of  Pen- 
nock, by  the  defendant's  refusal  to  convey  him  a  moiety  of  this  land,  a  cause  of  action 
accrued,  which,  after  his  death,  could  be  prosecuted  by  his  administrator  only.    The 
heir  cannot  support  an  action  for  this  breach  of  promise  in  the  lifetime  of  his  ancestor. 
Whether  there  may  not  be  cases  in  which  equity  would  permit  the  heir  to  make  use 
of  the  name  of  the  administrator  to  recover  damages  for  his  own  benefit,  I  will  not 
now  inquire,  because  it  is  evident  that  any  damages  which  may  be  recovered  in  this 
case  would  be  for  the  use  of  the  heir,  he  being  the  only  child  of  his  father,  and  enti- 
tled to  the  whole  estate,  both  real  and  pejsonal.    There  is  a  peculiar  reason  why  the 
action  should  be  maintained  by  the  administrator  in  the  present  instance,  and  that 
is,  that  the  courts  of  Pennsylvania  have  no  jurisdiction  over  land  lying  in  Ohio,  and 
therefore,  the  only  relief  they  can  afford  on  this  contract,  is  a  personal  action,  which 
is  very  convenient,  as  both  parties  reside  here.     It  may  be  more  for  the  advantage  of 
the  heir  of  Pennock,  to  recover  damages  on  this  contract  than  to  resort  to  a  chancery 
suit  in  the  state  of  Ohio,  for  the  land  itself;  and  if  the  contract  is  of  such  a  nature  as 
to  give  an  action  for  damages,  there  can  be  no  reason  why  the  courts  of  Pennsylvania 
should  obstruct  it. 

Where  two  citizens  of  the  same  state  enter  into  an  agreement  respecting  lands  in 
another  state,  they  naturally  look  to  the  laws  of  their  own  state  for  redress,  in  case 
of  breach  of  contract.  And  in  this  reasonable  expectation,  the  courts  will  not  disap- 
point them.  Of  this,  the  case  of  Penn  v.  Baltimore  affords  innumerable  examples, 
where  the  court  of  chancery  of  England  compelled  Lord  Baltimore  to  a  specific  per- 
formance of  articles  of  agreement  for  fixing  the  boundaries  between  the  provinces  of 
Maryland  and  Pennsylvania.  If  we  had  a  court  of  chancery,  no  doubt  Freeman  might 
be  compelled  to  execute  a  conveyance  to  the  heir  of  Pennock.  But  not  having  such 
a  court,  I  see  no  remedy  but  by  an  action  on  the  case,  on  this  parol  contract,  by  the 
administrators  of  Pennock. 

2.  But  if  the  action  be  maintainable,  what  should  be  the  measure  of  damages? 
In  considering  this  question,  I  will  take  for  granted  that  the  plaintiff  is  acting  in 
concert  with  the  guardian  of  the  heir,  which,  from  the  record,  I  think  myself  war- 
ranted in  doing.    And  under  those  circumstances,  if  the  defendant  did,  upon  request, 
refuse  to  convey  a  moiety  of  the  land  to  Pennock  in  his  lifetime,  I  see  no  objection 
to  recovering  one  half  the  value  of  the  land  in  damages.    No  second  action  will  lie 
on  this  contract,  and  therefore,  the  defendant  can  never  again  be  exposed  to  answer 
in  damages.  But  damages  to  this  amount,  the  defendant  cannot  say  would  be  unjust, 
because  the  heir  might  afterwards  go  into  the  state  of  Ohio,  and  recover  one  half  of  the 
land.    This  I  cannot  suppose,  because,  being  contrary  to  equity,  it  would  not  be  per- 
mitted in  a  court  of  equity.     Where  one  has  a  contract  for  land  on  which  he  may 
support  an  action  at  law,  he  may  take  his  choice  to  sue  at  law,  or  seek  a  specific  per- 


408  SUPREME  COURT  [Lancaster, 

[Pennock  v.  Freeman.] 

able,  that  the  decedent  had  a  vested  estate  in  the  land.  He  cer- 
tainly had  an  equity,  which,  if  no  obstacle  to  a  specific  execution 
of  the  trust  were  found  in  the  circumstances,  might  have  given  him 
such  an  estate.  But  a  decree  of  specific  performance  is  of  grace, 
and  not  of  right.  It  rests  in  the  discretion  of  the  chancellor,  who 

formance  in  equity.  But  he  cannot  do  both.  He  cannot  recover  damages  at  law  from 
his  trustee,  for  refusing  to  convey  the  legal  estate,  and  then  go  into  equity  and  recover 
the  estate  itself,  on  the  ground  of  a  resulting  trust.  Having  made  his  election  to  sue 
at  law,  he  must  abide  by  it. 

It  appears  that  in  this  case  the  jury  gave  the  value  of  a  moiety  of  the  land  in 
damages,  but  the  damages  were  given  generally,  and  the  declaration  consists  of  five 
counts,  two  of  which  are  said  to  be  bad  by  the  plaintiff  in  error.  If  so,  the  judgment 
would  be  erroneous,  because  this  court  cannot  ascertain  on  what  counts  the  jury 
meant  to  assess  the  damages.  Where  some  of  the  counts  are  bad,  and  no  evidence 
is  given  in  support  of  them,  the  court  before  whom  the  cause  is  tried,  may  amend  the 
verdict  by  entering  it  in  favour  of  the  defendant  on  the  bad  counts  and  for  the  plain- 
tiff on  the  good  counts  only.  But  a  court  of  error  knows  nothing  of  the  evidence  and 
can  make  no  such  amendment.  Let  us  examine,  then,  the  fourth  and  fifth  counts  in 
this  declaration.  The  fourth  count,  in  the  first  place,  sets  forth  a  verbal  agreement 
between  Jacob  Pennock  and  the  defendant,  to  join  in  the  purchase  of  a  tract  of  land 
containing  twenty-five  acres,  with  a  sawmill,  &c.  for  the  sum  of  1951  dollars,  of 
which  each  party  was  to  pay  one  half,  and  the  deed  was  to  be  taken  in  the  name  of 
the  defendant  alone,  to  be  held  by  him  nevertheless,  as  to  one  moiety,  in  trust  for  the 
said  Pennock,  his  heirs  and  assigns ;  and  that  the  said  purchase  was  accordingly 
made,  a  deed  executed  by  the  vendor  to  the  defendant  alone  (in  trust  as  aforesaid), 
and  a  moiety  of  the  purchase  money  paid  by  the  said  Pennock.  The  declaration  then 
avers  that,  in  consideration  of  the  promises,  the  defendant  promised  to  pay  to  the  said 
Pennock,  his  administrators  and  assigns,  as  much  money  as  a  moiety  of  the  said  land 
with  the  appurtenances  was  reasonably  worth,  &c.  Now  what  consideration  is  there 
for  this  promise  ?  I  confess  I  can  perceive  none.  The  defendant  had  done  every 
thing  which  the  agreement  required  him  to  do ;  he  had  paid  half  the  purchase 
money  and  taken  a  deed  in  his  own  name  (in  trust  for  Pennock  as  to  a  moiety): 
why  then  should  he  pay  one  half  the  value  of  the  land  ?  or  what  was  he  to  receive 
in  consideration  of  such  payment  ?  It  does  not  appear  that  he  was  to  receive 
any  thing.  If  Pennock  had  agreed  to  release  his  equity  in  the  land,  it  would 
have  been  sufficient,  for  then  the  defendant  would  have  had  title  to  the  whole 
tract  both  at  law  and  in  equity.  It  is  argued  indeed  by  the  plaintiff's  counsel,  that 
the  equity  of  Pennock  would  have  been  virtually  released  by  acceptance  of  half  the 
value  of  the  land.  But  this  kind  of  argumentative  release  is  not  a  sufficient  consi- 
deration to  support  an  assumption.  The  defendant  might  have  paid  his  money,  and 
then  had  to  encounter  a  suit  in  chancery.  If  the  agreement  was,  that  Pennock  should 
release  his  equity,  the  declaration  should  have  so  averred  it,  and  a  release  should 
have  been  tendered  when  the  money  was  demanded.  I  am  of  opinion,  therefore,  that 
this  count  is  bad,  because  it  sets  forth  a  promise  without  consideration.  The  fifth 
count  avers  an  agreement  to  purchase  in  partnership,  a  purchase  made,  a  deed  taken 
in  the  name  of  the  defendant  alone,  the  purchase  money  paid  by  each  in  moieties,  &c. 
as  stated  in  the  fourth  count,  and  then  assigns  a  breach  of  promise  as  follows.  "  Tet 
the  said  defendant,  his  promise  and  agreement  aforesaid  in  no  wise  regarding,  since 
the  conveyance  of  the  said  tract  of  land  to  him  as  aforesaid,  gainsays  his  said  promise 
and  agreement,  and  refuses  to  hold  and  stand  seised  of  an  undivided  moiety  of  the 
said  tract  of  land  to  and  for  the  use  of  the  said  Jacob  Pennock  in  his  lifetime  and  for 
the  use  of  the  legal  representatives  of  the  said  Jacob  since  his  decease,  &c."  The  sub- 
stance of  the  alleged  injury  is,  that  the  defendant  has  told  a  falsehood  by  denying 
the  trust:  but  this  denial  has  not  divested  the  right  of  Pennock.  His  equity  remains 
just  as  strong  after  the  denial  as  before,  nor  can  any  words  of  the  defendant  affect  it. 
I  cannot  perceive,  therefore,  that  this  count  sets  forth  any  actor  omission  of  the  de- 
fendant by  which  the  plaintiff  has  suffered  damage. 

Upon  the  whole  then,  my  opinion  is  that  the  judgment  should  be  reversed,  and  a 
venire  de  novo  awarded ;  and  inasmuch  as  it  appears  that  the  defendant  haa  been 
compelled  to  pay  the  sum  recovered,  the  plaintiff  must  make  restitution. 


May  1833.]  OF  PENNSYLVANIA.  409 

[Pennock  v.  Freeman.] 

would,  for  any  thing  inequitable,  withhold  his  assistance,  and  leave 
the  parties  to  their  legal  remedies  on  the  agreement.  Such  is  the 
course  in  respect  of  a  purchase  from  a  party  intoxicated,  though  not 
by  the  procurement  of  the  purchaser  ;  yet  such  a  purchase  is  unim- 
peachable at  law.  It  is  a  want  of  attention  to  this,  among  other  things, 
which  leads  us  to  suppose,  as  we  sometimes  erroneously  do,  that  the 
equitable,  is  equivalent  to  the  legal  estate,  in  every  respect  but  that 
of  form.  We  sustain  an  ejectment  on  such  an  equity,  it  is  true,  but 
only  as  a  substitute  for  a  bill,  and  subject  to  all  those  considerations 
by  which  a  claim  to  have  the  land  itself  may  be  defeated.  So,  for 
a  fraud  which  avoids  the  contract,  the  purchaser  may  rescind  the 
bargain,  and  elect  to  have  his  money  again,  even  at  law.  The 
courts  in  Ohio,  it  is  believed,  have  an  equity  side  on  which  the  pro- 
ceeding is  by  bill ;  but  the  principles  of  equity,  whatever  be  the  form 
of  their  administration,  would  surely  bar  the  heir  from  recovering  the 
land  there,  after  the  administrator  had  recovered  back  the  price  of  it 
here. 

But  that  the  heir  is  in  no  privity  to  the  administrator,  is  also  un- 
founded. He  is  entitled,  at  least,  to  a  share  of  the  residue  of  what 
may  be  recovered,  after  payment  of  debts  ;  and  standing  in  a  fidu- 
ciary relation,  he  is  so  far  a  privy  in  representation,  that  the  act  of 
the  administrator  will  bind  him  as  that  of  his  trustee.  But  the  rights 
of  creditors,  for  whom  also  the  administrator  is  a  trustee,  are  not  to 
be  postponed  to  the  equities  of  the  heir  against  those  persons  in  whose 
hands  the  assets  are  found  ;  and  this  personal  right  of  action  is 
clearly  assets  to  be  collected  for  the  protection  of  domestic  creditors 
(of  the  possibility  of  whose  existence  in  the  present  case  it  is  imposs- 
ible to  judge),  instead  of  sending  them  to  pursue  their  claims  in  for- 
eign courts  against  real  assets  which  may  not  be  as  accessible  abroad 
as  the  personal  assets  are  at  home.  In  order  to  perform  this  duty  of 
protection,  the  nature  of  which  was  pointed  out,  and  its  obligation 
enforced,  in  Mothland  v.  Wireman,  3  Penns.  Rep.  187,  and  Miller's 
Appeal,  3  Rawle  319  ;  the  administrator  necessarily  succeeds  to  the 
decedent's  right  to  rescind  the  contract,  by  recovering  back  the  pur- 
chase money,  or  leave  the  heir  to  affirm  it,  by  insisting  on  a  convey- 
ance. 

But  though  it  had  been  held,  that  a  personal  action  might  lie,  the 
nature  of  the  case  on  which  it  might  be  maintained,  had  not  been 
intimated.  It  would  be  founded  only  on  a  breach  of  the  contract,  or 
a  rescission  of  it.  But  when  the  cause  came  to  be  tried,  the  special 
counts  were  found  to  be  unsupported  by  the  proof;  and  it  remained 
to  be  determined,  whether  a  recovery  might  not  be  had  on  the  gen- 
eral count,  by  treating  the  contract  as  at  an  end,  and  the  intestate's 
share  of  the  purchase  money  as  having  been  received  by  the  defend- 
ant to  the  intestate's  use.  With  this  intent  the  cause  was  put  to 
the  jury  on  the  point  of  actual  fraud,  of  which  there  was  full  and 
ample  proof,  which,  by  vitiating  the  contract  in  its  origin,  gave  a 
clear  title  to  a  return  of  the  money  paid  under  it.  The  plaintiff  had 
3u 


410  SUPREME  COURT  [Lancaster, 

[Pennock  v.  Freeman.] 

shown  a  sale  by  the  defendant,  of  a  moiety  of  the  land  at  an  ad- 
vanced price;  which,  he  contended,  was  the  measure  of  the  damages. 
But  the  jury  were  directed,  that  the  price  of  the  land  sold  hy  the 
defendants,  could  be  recovered  only  on  the  basis  of  the  contract,  of 
which  the  recovery  would  be  an  affirmance  ;  besides,  that  the  right 
of  the  plaintiff's  intestate  was  not  specifically  attached  to  the  moiety 
sold,  and  that  enough  still  remained  in  the  defendant,  as  a  trustee  of 
the  legal  title,  to  satisfy  the  trust ;  and  that  he  was,  therefore,  enti- 
tled but  to  the  money  paid  by  his  intestate,  with  interest.  From 
this  it  is  apparent,  that  though  evidence  of  the  re-sale,  and  the  price 
received,  was  irrelevant,  it  was  not  sufficient  to  influence  the  verdict, 
which  was  right  upon  the  merits. 

There  are  minor  points  which  deserve  but  a  cursory  notice. 

Against  a  right  of  action  dependent  on  the  existence  of  a  secret 
fraud,  the  statute  of  limitations  runs  but  from  the  period  of  discovery  : 
and  though  more  than  time  enough  to  complete  the  bar  had  elapsed 
between  the  receipt  of  the  money  and  the  institution  of  the  suit,  it 
did  not  appear  that  a  sufficient  time  had  intervened  between  the  latter, 
and  the  discovery  of  the  fraud  which  annulled  the  contract  and  en- 
titled the  intestate  or  his  representative  to  repetition  of  the  purchase 
money.  On  this  ground  the  defence  on  the  statute  of  limitations 
was  put  to  the  jury,  and  it  seems  to  us  properly  disposed  of  in  the 
verdict.  To  the  objection  that  the  proof  did  not  support  the  general 
count,  in  which  the  money  is  laid  to  have  been  received  to  the  use  of 
the  administrator,  and  not  of  the  intestate  ;  it  is  a  sufficient  answer, 
that  the  point  was  not  made  at  the  trial,  or  in  time  to  give  the  plain- 
tiff an  opportunity  to  have  the  discrepance  removed  by  an  amend- 
ment. As  to  the  objection  that  the  verdict  was  taken  generally,  and 
not  on  the  count  which  was  the  actual  basis  of  the  recovery  ;  it  is 
enough  to  say,  that  whatever  effect  that  might  have  on  a  motion  in 
arrest  of  judgment  for  faultiness  of  a  particular  count,  it  is  certainly 
not  a  valid  reason  for  a  new  trial. 

The  exceptions  to  evidence  are  not  sustained.  By  the  provisions 
of  the  forty-second  rule  of  the  court,  the  deposition  of  Daniel  Moore 
was  properly  received,  even  without  proof  that  he  had  been  served 
with  a  subpoena  ;  as  it  was  conceded  that  he  resided  more  than  forty 
miles  from  the  place  of  trial ;  and  his  testimony  was  not  secondary 
to  that  of  the  other  witness  called  to  prove  the  same  fact.  In  like 
manner  the  deposition  of  Mary  Moran,  taken  on  a  joint  and  several 
commission  to  the  state  of  Delaware,  was  properly  received,  though 
the  commissioner  nominated  by  the  defendant  did  not  attend  at  the 
execution  of  it.  The  known  character  and  standing  of  the  absent 
commissioner  forbid  a  suspicion  that  he  was  purposely  out  of  the 
way;  but  it  must  be  apparent  that  if  the  absence  of  a  commissioner 
were  sufficient  to  stop  the  proceeding,  a  joinder  in  the  commission 
might  always  be  used  to  defeat  the  object  of  it.  But  there  was  no 
deficiency  of  authority.  The  commission  being  both  joint  and  several, 
and  therefore  providing  for  the  very  contingency  that  actually  hap- 


JWoyl833.]  OF  PENNSYLVANIA.  411 

[Pennock  v.  Freeman.] 

pened,  was  well  executed  ex  parte;  and  as  all  the  interrogatories  ap- 
pear to  have  been  answered,  there  is  no  cause  on  this  or  any  other 
ground  to  disturb  the  verdict. 
Judgment  affirmed. 


Brown  against  Webb. 

A  scire  facias  to  revive  a  judgment  after  the  death  of  the  defendant,  must  be  sued 
against  his  executors  or  administrators:  they  must  be  made  parties  to  it.  If  sued 
only  against  the  heirs  in  possession  of  the  inheritance,  it  is  erroneous. 

WRIT  of  error  to  the  court  of  common  pleas  of  Lancaster  county. 

To  January  term  1824,  Jeremiah  Brown  obtained  a  judgment 
against  Jonathan  Webb  for  512  dollars.  Subsequently  Jonathan 
Webb  died  intestate,  seised  of  real  estate,  of  which  William  Webb, 
Peter  W.  Webb  and  Rachel  Webb,  three  of  several  children,  were  in 
possession,  when  this  scire  facias  issued  against  them  to  show 
cause  why  they  should  not  become  parties  to  the  said  judgment,  and 
why  the  plaintiff  should  not  have  execution  of  the  lands  of  the  de- 
cedent in  their  possession.  The  defendants  plead  payment,  with 
leave,  &c.  Replication,  non  solvit,  issue. 

The  defendants,  after  the  jury  was  sworn,  offered  to  plead  spe- 
cially to  the  jurisdiction  of  the  court  and  to  the  sufficiency  of  the  par- 
ties ;  but  both  were  rejected  by  the  court  below  because  they  were 
out  of  time.  The  question  turned  alone  upon  whether  the  plain- 
tiffs could  recover  at  all  upon  a  scire  facias  against  the  heirs,  without 
joining  the  personal  representatives.  By  the  direction  of  the  court 
below  the  plaintiff  recovered,  and  the  defendants  sued  out  this  writ 
of  error. 

Champneys,  for  plaintiff  in  error,  cited,  Act  of  Assembly  of  1798, 
respecting  the  revival  of  judgments  ;  2  Saund.  210,  in  note;  3  Bac. 
Jib.  114,  115 ;  1  Chit.  PI  435,452  ;  7  Serg.  <$•  Rawle  328. 

Montgomery,  for  defendant  in  error,  cited,  JW'Lanahanv.  J\f'Lan- 
ahan,  I  Penns.  Rep.  113  ;  16  Serg.  <$•  Rawle  432  ;  2  Saund.  7;  7 
Serg.  fy  Rawle  328. 

The  opinion  of  the  Court  was  delivered  by 

KENNEDY,  J. — Several  errors  have  been  assigned  in  this  case,  but 
as  the  court  is  of  opinion  that  the  proceeding  and  judgment  had 
against  the  plaintiffs  in  error  in  the  court  below  cannot  be  supported 
by  the  laws  and  practice  of  this  state,  it  becomes  unnecessary  to 
notice  them. 


412  SUPREME  COURT  [Lancaster, 

[Brown  v.  Webb.] 

Although  the  ground  upon  which  this  court  considers  the  proceedings 
and  judgment  in  this  cause  erroneous,  has  not  been  formally  assigned 
for  error  according  to  a  rule  which  we  have  adopted  ;  yet  this  rule, 
as  chancellor  Kent  observes  in  Palmer  et  al.  v.  Loriland  et  al.,  16  Johns. 
353,  354,  "  was  only  intended  to  be  applied  to  objections,  that  the 
party  may  be  deemed  by  his  silence  to  have  waived,  and  which  when 
waived,  still  leave  the  merits  of  the  case  to  rest  with  the  judgment. 
But  if  tbe  foundation  of  the  action  has  manifestly  failed,  we  cannot, 
without  shocking  the  common  sense  of  justice,  allow  a  recovery  to 
stand."  Or  if,  for  want  of  a  proper  party  to  the  proceeding,  great 
injustice  may  be  done  to  the  interests  and  rights  of  others,  it  would 
be  equally  shocking  to  permit  the  proceeding  and  judgment  to  be 
carried  into  execution. 

By  the  act  of  assembly  passed  in  1705,  lands  in  this  state  were 
made  goods  and  chattels  for  the  payment  of  debts.  They  were  made 
liable  to  be  taken  in  execution  and  sold  as  such,  unless  the  rents, 
issues  and  profits  thereof  were  found  sufficient  beyond  reprizes  to  pay 
the  amount  of  the  execution  within  seven  years. 

Until  1806  they  might  have  been  seized  in  execution  under  a 
fieri  facias,  although  the  defendant  had  personal  property  of  any 
value  above  the  amount  of  the  execution  ;  when  the  legislature  re- 
strained the  seizure  of  lands  as  long  as  (he  defendants  produced  per- 
sonal property  sufficient  to  satisfy  the  executions.  So  completely 
are  lands  considered  goods  and  chattels  for  the  payment  of  debts, 
that  they  may  be  taken  in  execution  under  a  fieri  facias,  which  di- 
rects the  sheriff  to  levy  on  the  goods  and  chattels,  &c.,  without  men- 
tioning lands  specifically.  See  Jlndrew  v.  Fleming,  2  Doll.  93. 
Upon  the  same  principle  of  lands  being  assets,  the  same  as  goods  and 
chattels,  for  the  payment  of  debts,  it  has  been  held,  that  where  the 
land  of  a  deceased  debtor  has  been  sold  under  an  execution  on  a 
judgment  against  the  administrator,  the  money  arising  from  the  sale 
must  be  distributed  according  to  the  order  prescribed  for  the  payment 
of  the  debts  of  decedents  by  the  act  of  1794,  in  the  case  of  personal 
assets.  See  Agricultural  Bank  v.  Stambaugh,  13  Serg.  fy  Rawle  299. 
And  that  under  the  fourteenth  section  of  that  act,  the  assets  arising 
from  the  sale  of  the  real  as  well  as  personal  estate  of  decedents,  must 
be  averaged  among  the  creditors,  when  both  collectively  are  insuffi- 
cient to  pay  the  whole  amount  of  the  debts.  Wootering  v.  Stewart 
et  al,  2  Yeates  483. 

As  long  as  there  are  personal  assets  sufficient  to  pay  the  debts  of  the 
deceased  debtor,  it  would  be  wrong,  and,  it  appears  to  me,  would  be 
contrary  to  the  spirit  of  the  act  of  1806,  as  well  as  to  the  settled  prin- 
ciples of  practice  in  this  state,  to  resort  to,  or  to  take  the  lands  of  the 
deceased  in  execution  for  the  payment  of  his  debts.  And  upon  this 
principle  it  is,  and  not  unless  the  personal  assets  shall  be  shown  by 
the  administrators  or  executors  to  be  insufficient  for  the  payment  of 
the  debts,  that  the  orphan's  court  of  the  county  in  which  the  real  es- 
tate lies  is  authorized  to  decree  a  sale  of  it,  or  as  much  of  it  as  may  be 


May  1833.]  OF  PENNSYLVANIA.  413 

[Brown  v.  Webb.] 

sufficient  to  supply  the  deficiency  in  the  personal  estate  to  meet  the 
payment  of  the  debts. 

The  form  of  the  judgments  rendered  against  administrators  and 
executors  is,  "  de  bonis,"  &c.,  omitting  the  words  "  et  terris,"  which, 
I  think,  are  rarely  if  ever  inserted  ;  upon  which  writs  of  fieri  facias  are 
issued,  and  the  land  as  well  as  the  personal  property  of  the  decedents 
are  taken  in  execution  and  sold.  It  has  been  the  practice  in  many 
counties  of  the  state ;  and  I  would  have  supposed  the  universal  prac- 
tice throughout,  were  it  not  for  what  is  said  in  the  case  of  Wilson  v. 
Hunts  Executors,  1  Peters's  C.  C.  Rep.  442,  in  note,  that  on  the 
plea  of  no  assets,  where  the  plaintiff  does  not  choose  to  controvert 
the  plea,  or  in  case  he  does,  and  there  be  a  verdict  for  the  defendant, 
for  the  plaintiff  to  pray  judgment  de  bonis  quando  acciderint,  &c. ;  and 
upon  this  judgment,  when  entered,  if  there  be  lands  of  the  deceased, 
to  take  out  a  writ  of  fieri  facias,  and  to  levy  upon  them  without  fur- 
ther process  of  any  kind.  The  plea  of  no  assets  is  considered  as 
being  confined,  and  applying  only  to  personal  assets,  and  not  as  mili- 
tating against  the  idea  of  there  being  real  assets.  The  words 
"  quando  acciderint"  are  to  be  considered  as  having  a  reference  to 
personal  assets  merely,  and  as  excluding  all  idea  of  there. being  any 
in  the  hands  of  the  defendant  at  the  time  of  entering  the  judgment. 
With  respect  to  real  assets  or  lands,  they  are  always  in  being  until 
disposed  of,  and  the  words  "  quando  acciderint"  therefore,  are  inap- 
plicable to  them. 

Immediately  upon  the  death  of  a  debtor  in  Pennsylvania,  his  debts 
of  all  grades  become  indiscriminately  a  lien  upon  all  his  lands  lying 
within  the  state  of  which  he  died  seised  in  fee,  and  continue  to  be 
so  for  a  period  of  seven  years,  excepting  such  as  our  statute  of  gene- 
ral limitation  may  happen  to  run  against,  and  to  bar  the  recovery  of 
them,  without  suit  or  other  act  being  done  upon  the  part  of  the  credit- 
ors, for  the  purpose  of  continuing  their  lien  ;  and  if  within  that  time, 
when  the  debts  have  become  payable,  suits  be  commenced,  or  if  not 
payable  within  that  space,  a  statement  of  them  be  filed  in  the  prothono- 
tary's  office  of  the  county  where  administration  has  been  taken  upon  the 
estate  of  the  deceased,  the  lien  becomes  illimitable.  The  lands  jrf 
the  debtor  being  thus  made  completely  chattels  for  the  payment  of 
his  debts,  although  they  do  not  pass  into  the  hands  of  the  executors 
or  administrators  as  personal  assets  do,  yet  they  are  liable  to  be  seized 
and  taken  in  execution,  and  sold  upon  a  judgment  had  against  the 
executors  or  administrators,  in  like  manner  as  personal  goods  which 
have  come  into  their  hands  and  possession  ;  provided  the  rents,  issues 
and  profits  beyond  reprizes  of  the  land  seized  should  be  found  insuffi- 
cient to  pay  the  amount  of  the  execution  within  the  space  of  seven 
years.  See  Wilson  v.  Watson,  1  Peters's  C.  C.  Rep.  273.  The 
lands  and  personal  goods  of  the  deceased  may  both  be  seized 
and  sold  under  ;the  same  execution,  if  necessary  to  satisfy  it.  So 
that  upon  the  same  judgment  and  execution  against  a  debtor,  if  liv- 
ing, or  against  his  personal  representatives,  if  dead,  the  land  or  per- 
sonal goods,  or  both,  may  be  taken  in  execution  and  sold. 


414  SUPREME  COURT  [Lancaster, 

[Brown  v.  Webb.] 

In  England,  whenever  the  ancestor  by  his  obligation  binds  himself 
and  his  heirs  by  name  for  the  payment  of  money,  and  he  dies,  leav- 
ing the  debt  unpaid,  and  seised  of  lands  in  fee  simple  equal  in  value 
to  the  amount  of  the  debt,  which  descend  to  his  heir,  an  action  of 
debt  in  the  debet  and  detinet  may  be  maintained  against  the  heir, 
against  whom  a  judgment  will  be  rendered  personally  for  the  amount 
of  the  debt.  2  Saund.  7,  8,  note  (4)  ;  2  Bl.  Comm.  156. 

In  Pennsylvania  such  an  action  is  unknown,  and  I  take  it,  cannot 
be  sustained.  It  would  militate  against  the  policy  and  provisions  of 
our  law,  which  has  committed  the  administration  of  the  deceased's 
estate  to  his  personal  representatives  for  the  special  purpose  of  pay- 
ing his  debts  ;  and  as  the  means  of  doing  so,  has  made  both  the  real 
and  personal  estate  of  the  deceased  liable  to  be  taken  in  execution 
and  sold  ;  and  in  case  of  its  insufficiency  to  pay  all  the  debts,  has 
required  that  the  moneys  arising  from  the  sales  of  both  the  real  and 
personal  estate  shall  be  apportioned  among  the  creditors  of  equal 
grade  in  like  manner  as  if  it  were  all  personal. 

Under  the  act  of  1705,  all  possible  titles,  contingent  or  otherwise, 
in  lands  where  there  is  a  real  interest,  may  be  taken  in  execution. 
See  Humphreys  v.  Humphreys,  I  Yeatcs  427;  Hurst  v.  Lithgow,  1  Yeates 
24;  2  Dall  223  ;  Burd  v.  Dansdale,  2  Binn.  80,  91.  It  then  fol- 
lows as  a  necessary  consequence,  from  the  principle  of  making  lands 
and  real  estate  liable  to  be  taken  in  execution  and  sold  for  the  pay- 
ment of  debts  as  personal  goods  and  chattels,  and  to  be  appropriated 
and  apportioned  as  personal  assets  in  the  payment  of  the  debts  of 
deceased  debtors,  that  the  suits  of  creditors  for  the  recovery  of  their 
debts  must,  and  ought  to  be  commenced  and  prosecuted  against  the 
executors  or  administrators  of  the  deceased,  and  not  against  his  heirs. 
It  belongs  exclusively  to  the  executors  or  administrators  to  take  pos- 
session of  the  personal  estate,  and  to  collect  all  moneys  which  were 
owing  and  payable,  or  may  become  so  in  any  wise  to  the  estate  of 
the  deceased,  and  to  apply  the  whole  in  the  first  place  to  the  pay- 
mentof  the  debts.  Thus  they  necessarily  become  acquainted  with  the 
debts  owing  to  the  estate,  and  likewise  with  their  amount.  And  as 
the  personal  assets  are  to  be  first  applied  by  them  and  exhausted,  if 
necessary,  in  the  discharge  of  the  debts,  before  the  real  estate  is  to  be 
resorted  to,  they  are  the  only  persons  who  can  know  whether,  and 
what  of  the  debts  of  the  deceased  remain  unpaid,  and  whether  the 
real  estate  is  liable  and  ought  to  be  resorted  to  or  not,  and  if  so  to  what 
extent.  Hence,  of  all  that  have  any  concern  with  the  estate,  the 
executors  and  administrators  become  the  best  qualified  to  answer 
to  any  suit  that  may  be  brought  to  recover  a  claim  made  against  the 
estate  of  the  deceased.  Whether  it  has  been  already  paid  in  part  or 
in  whole  out  of  the  personal  assets  must  be  known  to  them,  but  may 
not  be  so  to  the  heirs  of  the  deceased.  Or  if  it  should  happen  to 
be  a  claim  that  was  paid  by  the  deceased  in  his  lifetime,  the  evi- 
dence of  such  payment  is  more  likely  to  be  in  the  possession  or  know- 
ledge of  the  executors  or  administrators,  than  of  any  other  person  or 


May  1833.]  OF  PENNSYLVANIA.  415 

[Brown  v.  Webb.] 

persons.  From  all  which  it  seems  to  follow,  that  they  must  be  better 
able  to  defend  and  protect  the  real  estate  of  the  deceased  in  the 
hands  or  possession  of  the  heirs  or  devisees  or  terre  tenants  from  un- 
just claims,  than  the  heirs,  devisees  or  terre  tenants  themselves  can 
possibly  be.  And  in  addition  to  this,  when  we  come  to  consider,  that 
the  estate,  both  real  and  personal,  may  be  insufficient  to  satisfy  all  the 
debts,  in  which  case  we  have  seen,  that  both  estates  must  be  applied 
to  the  payment  of  debts,  and  apportioned  among  them  the  same  as 
if  the  whole  were  personal  assets,  according  to  the  order  and  the 
grade  prescribed  by  the  act  of  the  19th  of  April  1794  ;  the  agency 
and  knowledge  of  the  executors  or  administrators  become  indispen- 
sably necessary,  in  order  that  this  may  be  fairly  accomplished,  and 
done  without  prejudice  to  the  creditors  as  between  themselves,  who 
must  be  preferred  and  paid  in  the  following  order.  1.  Physic  and 
funeral  expenses.  2.  Rents,  not  exceeding  one  year.  3.  Judgments. 
4.  Recognizances.  5.  Bonds  and  specialties.  And  next,  all  other 
debts,  excepting  those  owing  to  the  state,  which  are  to  be  last  paid. 
Hence  arises,  not  merely  the  propriety,  but  almost  the  absolute  ne- 
cessity of  making  the  executors  or  administrators  a  party  to  every 
legal  proceeding  which  shall  be  commenced  for  the  purpose  of  col- 
lecting a  debt  due  from  the  decedent  at  the  time  of  his  death, 
whether  it  be  the  real  or  the  personal  estate  that  must  be  resorted  to 
for  the  purpose  of  attaining  this  end. 

It  is  said  that  it  is  more  important  to  make  the  heirs  or  the  devi- 
sees parties  where  the  real  estate  is  intended  to  be  proceeded 
against,  because  they  are  the  persons  most  materially  interested. 
Admitting  this  to  be  so,  yet  we  must  recollect  that  the  rights  and  the 
interests  of  the  other  creditors  besides  the  one  suing,  who  may  be 
presumed  to  be  known  to  the  executors  or  administrators  and  not  to 
the  heirs,  are  to  be  protected  and  made  secure,  so  far  as  the  estate 
may  be  adequate  for  that  purpose  ;  but  without  a  knowledge  of  them 
and  their  claims  this  cannot  be  done.  Besides,  there  is  no  reason 
why  the  executors  or  administrators  should  not  be  trusted  with  the 
defence  and  protection  of  the  real,  as  well  as  the  personal  estate, 
against  unjust  claims  in  the  form  of  debts.  They  would  be  held  re- 
sponsible to  the  party  injured  by  their  unfaithful  and  fraudulent  con- 
duct in  the  one  case  as  well  as  the  other  ;  or  if  the  heirs,  devisees 
or  terre  tenants  shall  discover  in  due  time  that  their  interests  have 
been  neglected,  or  are  not  likely  to  be  attended  to  by  the  executors 
or  administrators  in  a  suit  against  them,  or  that  their  interests  have 
been  betrayed  by  collusion  with  the  plaintiff  in  the  suit,  they  will  be 
permitted,  in  the  names  of  the  executors  or  administrators,  to  defend 
for  themselves.  See  Fritz  v.  Evans,  13  Serg.  fy  Rawle  9.  And 
this,  no  doubt,  would  be  permitted  at  any  stage  of  the  proceeding 
before  a  sale  of  the  property,  when  the  application  is  made  to  the 
court  for  that  purpose  as  soon  as  the  party  shall  have  notice  of  such 
fraudulent  conduct  or  neglect. 

In  England,  although  lands  may  be  taken  in  execution,  yet  in  no 


416  SUPREME  COURT  [Lancaster, 

[Brown  v.  Webb.] 

case  can  they  be  sold  for  the  payment  of  debts.     The  creditor  is  com- 
pelled to  be  content  with  waiting  until  he  can  receive  payment 
of  his  debt  out  of  the  rents,  issues  and  profits  of  the  land.     The 
ownership  of  the  fee  simple  undergoes  no  change.     No  purchaser  of 
it  for  a  valuable  consideration  intervenes  to  claim  the  protection  of 
the  law  ;  but  the  land  still  remains  to  be  taken  as  the  property  of 
the  debtor  to  satisfy  his  creditors  out  of  the  annual  rents,  issues  and 
profits  thereof,  according  to  their  seniority  of  lien,  whenever  they 
shall  choose  to  proceed  against  it  by  execution.     And  if  a  junior 
judgment  creditor  should  issue  his  execution  first,  under  which  he 
has  one  half  of  all  the  defendant's  lands  extended,  that  cannot  prevent 
a  senior  judgment  creditor  from  issuing  afterwards  an  execution  upon 
his  judgment  and  taking  the  same  land  in  execution  ;  nor  can  the 
junior  judgment  creditor,  who  issued  his  execution  first,  complain  of 
being  thereby  injured  ;  for  he  is  only  forced  to  give  up  the  possession, 
of  the  land  to  a  certain  extent  after  having  enjoyed  the  profits  of  it 
for  a  time,  which  the  senior  judgment  creditor  might,  if  he  had 
pleased,  at  first  have  prevented  him  taking.     He  is,  in  truth,  through 
the  neglect  or  indulgence  of  him  who  had  a  prior  right,  benefited 
rather  than  injured.     It  is  then  out  of  the  annual  value  or  profits  of 
the  land  beyond  reprizes  that  (he  judgment  creditors  are  to  be  paid, 
if  they  should  choose  to  proceed  against  it ;  and  so  far  as  a  junior 
judgment  creditor  has  been  permitted  to  enjoy  the  annual  value  of 
the  land  under  his  execution,  it  is  a  satisfaction  of  his  debt  pro  tanto  ; 
but  the  moment  that  he  is  superseded  by  the  execution  of  an  older 
judgment,  the  increasing  satisfaction  of  his  judgment  is  suspended, 
and  it  continues  to  be  a  security  for  whatever  may  remain  unsatisfied 
of  it.     Thus  it  appears,  that  by  proceeding  against  the  heir  in  Eng- 
land, to  enforce  the  payment  of  a  judgment  obtained  against  the 
ancestor  in  his  lifetime,  as  it  is  out  of  the  annual  profits  of  the  land 
that  the  creditor  is  to  be  satisfied,  no  injury  can  arise  therefrom  to 
other  creditors  who  may  even  have  preferable  claims,  because  it  does 
in  nowise  preclude  them  from  proceeding  afterwards  against  the 
same  land.     It  may  not  be  improper  to  mention,  that  although  they 
have  in  England  a  statute  somewhat  similar  to  ours,  prescribing  the 
order  of  preference  in  which  the  debts  of  a  deceased  person  shall  be 
paid  by  his  executors  or  administrators,  yet  it  does  not  extend  to  or 
embrace  his  real  estate  as  ours  does.     And  again,  that  the  old  prin- 
ciple of  the  common  law,  upon  which  an  action  was  first  sustained, 
and  became  necessary  against  the  heir  to  recover  the  debt  of  the 
ancestor,  never  existed  in  this  state  ;  which  was  this,  that  the  execu- 
tor or  administrator  was  entitled  to  the  whole  of  the  personal  estate, 
to  the  utter  exclusion  of  the  creditors  of  the  testator,  and  no  alterna- 
tive was  left  for  them  but  to  proceed  against  the  real  estate.     3  Rep. 
12,  a;  2  Saund.  7,  8,  note  (4).     If  it  be  then,  that  the  cause  of 
proceeding  in  England  is  well  adapted  to  carry  into  effect  the  ulti- 
mate design  of  their  municipal  regulations  on  this  subject,  it  would 
seem  to  be  almost  a  necessary  inference,  that  it  would  be  ill  suited 


May  1833.]  OF  PENNSYLVANIA.  417 

[Brown  v.  Webb.] 

lo  attain  the  end  of  our  law  on  the  same  subject,  which  has  been 
shown  to  be  so  entirely  different. 

Since  lands  or  real  estate  have  been  made  goods  and  chattels  for 
the  payment  of  debts  in  this  state,  it  has  become  a  great  desideratum, 
as  often  as  a  judicial  sale  shall  be  made  of  the  legal  estate  in  them 
for  that  purpose,  to  have  the  proceedings  so  regulated,  if  possible,  as 
that  the  sale  shall  pass  a  title  to  the  purchaser  free  from  all  liens, 
and  claims  for,  and  on  account  of  the  debts  of  the  owner,  as  also  of 
those  from  and  through  whom  he  derives  his  title,  so  that  they  may 
be  held  by  the  purchaser  in  the  same  manner,  in  severally  or  other- 
wise, as  they  were  held  by  the  debtor  himself,  and  discharged  of  all 
liens  on  account  of  such  debts;  to  the  end  that  persons  disposed  to 
buy  may  know  what  they  are  buying,  and  may  be  induced  to  give 
fair  and  full  prices  for  them,  and  thus  advance  the  interest,  as  well 
of  the  creditors  as  of  the  terre  tenants,  or  the  heirs  and  devisees  of 
the  decedent. 

But  if  such  a  proceeding  as  has  been  had  in  the  present  case  is  to 
prevail,  such  object  can  not  be  attained.  It  is  a  proceeding  by  scire 
facias,  as  appears  from  the  evidence  given  on  the  trial  of  the  cause, 
against  three  of  eight  children  and  heirs  of  Jonathan  Webb  the  de- 
ceased debtor,  and  defendant  in  the  original  judgment.  The  plain- 
tiffs in  error,  who  were  the  defendants  below,  seem  to  have  only  an 
undivided  interest  with  the  other  five  children  in  the  lands  of  which 
Jonathan  Webb  the  debtor  died  seised  in  fee ;  and  it  will  scarcely  be 
pretended,  that  under  the  judgment  rendered  against  the  plaintiffs  in 
error  below,  that  more  than  their  undivided  interest  in  the  lands 
could  be  taken  in  execution  and  sold.  Now  it  is  obvious  that  such 
an  undivided  interest  would  not  be  a  very  desirable  purchase,  and 
therefore  would  be  likely  to  produce  a  great  and  unnecessary  injury 
to  some  of  the  parties  concerned :  besides,  it  is  possible  that  a  doubt 
might  exist  in  the  minds  of  some  who  might  be  disposed  to  buy, 
whether,  as  it  was  perhaps  only  the  interest  of  three  of  the  heirs  of 
Jonathan  Webb  that  was  selling,  the  whole  estate,  including  this 
interest,  might  not  be  liable  to  be  sold  afterwards  as  the  estate  of  the 
deceased,  upon  a  judgment  to  be  obtained  by  another  creditor  against 
the  administrators.  It  is  manifest  that  such  a  course  of  proceeding, 
if  not  arrested,  is  calculated  to  do  great  injustice  to  the  other  credi- 
tors of  the  deceased,  if  there  happen  to  be  any,  as  well  as  his  heirs. 

As  having  a  bearing  upon  this  case,  I  may  refer  to  what  is  now 
to  be  considered  the  settled  doctrine  by  this  court,  in  regard  to  the 
persons  against  whom  the  action  must  be  brought,  in  order  to  recover 
a  legacy  charged  upon  land,  for  which  no  claim  whatever  can  be 
made  upon  the  personal  estate  of  the  testator,  as  in  the  case  of  debts. 
Yet  the  executors  must  be  made  defendants  to  the  suit,  as  well  as 
the  devisee  of  the  land.  But  this  is  done  for  the  purpose  of  protect- 
ing the  creditors  of  the  testator,  with  whose  claims,  if  there  should 
be  any,  the  executors  are  presumed  to  be  acquainted ;  and  in  case 
it  should  become  necessary,  after  a  judgment  obtained  for  the  amount 
3c 


418  SUPREME  COURT  [Lancaster, 

[Brown  v.  Webb.] 

of  the  legacy,  to  proceed  by  execution  to  sell  the  land,  that  it  may 
be  sold  for  a  full  price,  discharged  from  the  lien  of  the  debts  of  the 
testator,  as  well  as  of  the  devisee  himself,  and  out  of  the  money 
arising  from  the  sale,  all  be  paid  according  to  the  order  of  preference 
prescribed  by  law,  and  seniority  of  lien.  See  M  'Lana/mn  v.  M'Lan- 
ahan,  1  Penns.  Rep.  112,  113;  Brown  v.  Furor,  4  Serg.  fy  Rawle 
217,  218;  Gause  v.  Wylie,  4  Serg.  $>  Rawle  509;  Moore  v.  Rees,  13 
Serg.  fy  Rawle  436 ;  Otty  and  Wife  v.  Ferguson,  1  Rawle  294. 

Now,  after  having  decided  that  the  executors,  who  have  nothing 
to  do  with  the  payment  of  a  legacy  charged  upon  land,  must  be 
made  defendants  in  a  suit  brought  to  recover  it;  would  it  not  seem 
somewhat  incongruous,  if  not  inconsistent,  to  dispense  with  their 
being  made  defendants  in  a  suit  to  recover  a  debt  against  the  estate 
of  the  deceased,  when  it  belongs  to  them  particularly  to  ascertain 
all  the  debts  that  exist  against  the  estate,  and  to  have  them  all  paid, 
or  at  least  so  far  as  the  estate  may  be  adequate  to  it? 

But  it  appears  to  me,  that  even  admitting  that  terre  tenants,  after 
the  death  of  the  defendant  in  the  judgment,  may  be  proceeded  against 
here  as  in  England,  that  the  proceedings  and  judgment  in  this  case 
against  the  plaintiffs  in  error  are  erroneous ;  for  it  does  not  appear 
that  Jonathan  Webb  died  without  leaving  heirs,  yet  the  writ  of  scire 
facias  contains  no  direction  whatever  to  warn  his  heirs,  but  to  warn 
the  plaintiffs  in  error  as  being  in  possession  of  his  real  estate  as  terre 
tenants  merely;  neither  does  it  appear  that  any  previous  writ  of 
scire  facias  was  issued  to  warn  the  heirs;  so  that  there  may  be  heirs 
of  Jonathan  Webb  in  full  life,  having  lands  which  were  of  the  de- 
ceased at  the  time  of  the  judgment,  and  within  the  jurisdiction  of 
the  court  below,  and  yet  no  attempt  made  to  warn  them. 

It  is  laid  down  in  2  Mallory's  Ent.  389,  pi.  28  (and  18  Ed.  2,  Execu- 
tion 242 ;  1  Roll.  Mr.  900,  Letter  R,  pi.  2,  are  cited  for  it),  that  "  when 
the  conusor  is  dead  and  a  scire  facias  is  sued  out  against  the  heir  and 
he  is  returned  dead,  a  scire  facias  lies  against  the  terre  tenant;"  from 
which  it  might  be  fairly  inferred  that  it  does  not  lie  before.  But  it 
it  is  not  left  to  inference,  for  in  the  next  pi.  (29)  he  further  expressly 
declares,  that  "  until  it  is  returned  that  the  conusor  is  dead  without 
any  heir,  or  that  the  heir  is  summoned,  the  terre  tenant  shall  not  be 
summoned,  because  the  heir  may  have  an  acquittance,"  for  which 
he  quotes  the  same  authorities,  adding  pi.  3  instead  of  pi.  2,  in  1  Roll. 
Mr.  900,  Letter  R. 

Sergeant  Williams,  in  his  note  (4),  2  Saund.  7,  says,  "  it  is  the 
usual  way  to  join  the  heir  and  tenants  of  the  land,  or,  as  they  are 
generally  called,  terre  tenants,  in  the  writ  of  scire  facias,"  and  refers 
to  F.  JV.  B.  597,  note  (a),  Cro.  Eliz.  896;  Heydon's  Case,  Cro.  Car. 
295  ;  Eyres  v.  Taunton,  2  Salk.  598 ;  Panton  v.  Hall,  Lill.  Ent.  384, 
which  seem  to  support  his  position  fully,  and  at  the  same  time  sus- 
tain and  confirm  the  proposition  that  the  terre  tenants  can  not  be 
called  on  to  answer  without  the  heir,  if  there  be  any,  and  if  there  be 


May  1833.]  OF  PENNSYLVANIA.  419 

[Brown  r.  Webb.) 

none,  that  that  ought  to  appear  by  the  return  of  the  sheriff  to  the 
writ. 

I  am  also  inclined  to  think  that  the  writ  of  scire  facias  is  erroneously 
defective,  in  omitting  to  notice  the  plaintiffs  in  error  as  tenants  of 
lands  which  were  of  the  said  Jonathan  Webb  on  the  day  of  the  date  of 
the  judgment ;  because  as  a  judgment,  according  to  the  laws  of  this 
state,  it  could  be  a  lien  upon  no  other  lands;  and  I  take  it,  that  in 
England  it  is  only  the  terre  tenants  of  the  lands  of  the  deceased, 
upon  which  the  judgment  as  such  became  a  lien,  who  are  to  be 
warned ;  for  certainly  no  other  can  be  made  liable  to  execution  under 
it  in  the  hands  of  terre  tenants,  who  have  become  such  by  purchase 
for  a  valuable  consideration.  There  the  judgment  binds  lands  sub- 
sequently acquired,  and  hence  the  words  "  or  at  any  time  after"  are 
superadded  in  the  writ  to  the  words  "  tenants  of  the  lands  and  tene- 
ments which  were  of  the  said  A.  B.  at  the  time  or  on  the  day  of 
rendering  the  judgment  aforesaid;"  but  here  the  judgment  binds 
those  lands  only  of  which  the  defendant  was  seised  at  the  time  of 
entering  it.  Rundle  v.  Ettwein,  2  Yeates  23.  In  England  the  sheriff 
is  therefore  commanded  by  the  writ  to  make  known  to  the  heir  of 
the  said  A  B,  and  also  to  the  tenants  of  the  lands  and  tenements 
which  were  of  the  said  A  B  at  the  time  of  rendering  the  judgment 
aforesaid,  or  at  any  time  after,  that  they  be,  &c.  See  2  Lill.  Ent. 
384,  385.  The  writ,  however,  in  this  case  recites,  inter  alia,  that 
the  real  estate  of  the  said  Jonathan  Webb  had  been,  and  still  was,  in 
the  hands  and  possession  of  the  plaintiffs  in  error,  without  saying 
when  or  at  what  time  he  was  seised  of  it — whether  before,  at  the 
date  of  the  judgment,  or  afterwards;  and  then  directs  the  sheriff  to 
give  notice  to  the  plaintiffs  in  error  by  name,  calling  them  also 
"  terre  tenants  of  the  lands  of  the  said  Jonathan  Webb,  &c.  to  show, 
&c.  why  they  should  not  be  made  parties  to  the  said  judgment,  and 
why  the  said  Jeremiah  Brown  should  not  have  execution  against  the 
forge  and  lands  of  the  said  Jonathan  Webb  deceased,  in  their  possess- 
ion, for  the  debt  and  damages,  &c."  Now  it  is  manifest,  that  not- 
withstanding all  that  is  alleged  or  suggested  in  this  writ,  that 
although  Jonathan  Webb  may  have  been  seised  in  fee  of  the  forge 
and  all  the  lands  mentioned  therein,  it  may  have  been  before  the 
judgment  was  obtained,  and  not  at  the  time  of  entering  it,  or  any 
subsequent  period  whatever.  Where  is  there  then  any  good  cause 
shown  for  calling  upon  the  defendants  to  answer?  The  plaintiffs  in 
error,  by  putting  in  the  plea  of  payment  below,  do  not  appear  by  that 
to  me  to  have  supplied  any  defect,  or  in  any  degree  to  have  changed 
the  allegations  or  suggestions,  as  to  this  particular,  in  the  writ,  for  the 
benefit  of  the  defendant  in  error.  Neither  can  I  perceive  that  the 
verdict  of  the  jury  has  cured  the  defects  here  alluded  to,  unless  the 
last  plea  put  in  by  the  plaintiffs  in  error  during  the  trial  of  the  cause 
below,  which  is  quite  as  loose  and  wide  of  the  mark  as  the  writ  itself, 
and  seems  to  have  been  drawn  up  with  a  view  to  negative  those 
allegations  contained  in  the  writ,  which  I  have  shown  to  be  quite  too 


420  SUPREME  COURT  [Lancaster, 

[Brown  v.  Webb.] 

uncertain  to  form  a  material  issue,  be  considered  as  substantially 
putting  in  issue  the  fact,  whether  or  not  the  plaintiffs  in  error  were 
the  tenants  of  any  lands  of  which  Jonathan  Webb  was  seised,  and 
which  were  bound  by  the  judgment.  If  looked  upon  in  this  light, 
then,  the  verdict  is  defective  and  insufficient,  because  the  jury,  if  they 
found  that  the  plaintiffs  in  error  were  the  tenants  of  any  such  lands, 
ought  by  their  verdict  to  have  returned  what  lands,  describing  them 
with  reasonable  certainty. 

All  then  that  is  set  forth  in  the  writ  of  scire  facias  as  to  the  plain- 
tiffs in  error  being  tenants  of  the  lands,  is  perfectly  consistent  with 
their  having  become  such  by  purchase  fairly,  for  a  valuable  consider- 
ation, from  Jonathan  Webb,  before  the  judgment  was  obtained  by 
Brown,  in  which  case  it  can  not  be  pretended  that  they  could  be 
taken  in  execution  under  the  judgment.  See  2  Saund.  8,  note  (5), 
and  the  authorities  there  cited  by  serjeant  Williams. 

This  court  is  of  opinion  that  the  heir,  devisee  or  tenant  can  not  be 
called  on  to  show  cause  why  execution  should  not  be  had  of  the 
lands  which  they  hold,  and  which  were  of  a  decedent  at  the  time  of 
rendering  the  judgment  against  him,  without  first  warning,  or  at 
least  joining  the  executors  or  administrators  in  the  writ  of  scire  facias 
and  warning  them  at  the  same  time  for  that  purpose. 

The  judgment  of  the  court  below  is  reversed. 


Turner  against  Hauser. 

A  widow  of  an  intestate,  whose  annual  interest  is  charged  on  the  land  token, 
is  entitled  to  come  in  under  the  fourteenth  section  of  the  act  of  1794,  as  against  the 
personal  estate  of  the  tcrrc  tenant  for  one  year's  interest  as  rent,  and  this,  by  construc- 
tion of  the  sixth  section  of  the  act  of  1807,  which  provides,  that  her  interest  "  may  be 
recovered  by  action  of  debt  or  by  distress,  as  rents  are  usually  recovered  in  this  com- 
monwealth. ' 

By  distraining  the  goods  of  the  terrc  tenant  after  his  death,  where  more  than  one 
year's  interest  is  in  arrear,  the  widow  can  not  obtain  more  than  one  year's  interest, 
and  thus  defeat  the  order  of  payment  prescribed  by  the  act  of  1794. 

ERROR  to  the  court  of  common  pleas  of  Schuylkill  county. 

This  was  a  case  stated  in  the  nature  of  a  special  verdict,  in  which 
David  Hauser,  administrator  of  Jacob  Hauser  deceased,  was  plaintiff 
below,  and  David  Turner  defendant.  The  following  are  the  facts  of 
the  case. 

On  the  30th  day  of  July  1814,  in  the  orphan's  court  of  the  said 
county  of  Schuylkill,  a  tract  of  land,  situate  in  Westpenn  township, 
late  the  estate  of  Jacob  Hauser  the  elder  (father  of  the  plaintiff's  in- 
testate), was  by  the  said  court  adjudged  to  Jacob  Hauser,  the  plaintiff's 
intestate,  at  the  appraised  value  thereof — the  widow,  his  mother's 


May  1833.]  OF  PENNSYLVANIA.  421 

[Turner  v.  Hauser.] 

third,  to  wit  1000  dollars,  being  charged  thereon,  the  interest  to  be 
paid  annually,  &c.  agreeably  to  the  intestate  laws  of  this  common- 
wealth. 

December  18th,  1827.  Jacob  Hauser,  the  plaintiff's  intestate, 
died,  leaving  also  a  widow  and  sundry  children,  including  the  plain- 
tiff in  this  suit,  residing  on  the  premises  in  question. 

January  5th,  1828.  Eva  Hauser,  the  widow  of  Jacob  Hauser  the 
elder,  to  whom  several  years  interest  was  due,  issued  her  warrant 
to  the  defendant  above  named,  in  the  following  words,  to  wit : 

Whereas  Jacob  Hauser,  of  the  township  of  Westpenn,  county  afore- 
said, died  intestate  some  time  since,  leaving  a  widow  named  Eva,  and 
issue  several  children,  to  whom  his  real  estate  descended  agreeably  to 
the  laws  of  this  commonwealth,  which  real  estate  was  valued  under 
the  direction  of  the  orphan's  court  of  said  county,  and  the  widow  afore- 
said became  entitled  to  the  interest  of  the  one-third  of  the  real  estate, 
in  lieu  of  dower  at  common  law.  And  whereas  about  two  hundred 
acres  were  adjudged  to  Jacob  Hauser,  one  of  the  sons  of  said  de- 
ceased, amounting  to  the  said  widow  the  sum  of  60  dollars  inter- 
est annually.  And  whereas  the  annual  sum  of  60  dollars  is  due 
and  unpaid  for  four  years  and  upwards,  amounting  to  240  dollars. 
This  is  therefore  to  authorize  and  require  you  to  distrain  the  goods 
and  chattels  lying  and  being  upon  the  land  so  valued  as  aforesaid, 
late  the  real  estate  of  the  said  Jacob  Hauser  deceased,  and  to  pro- 
ceed to  sell  the  same  according  to  law,  for  the  best  price  that  can  be 
gotten,  returning  the  overplus,  if  any,  to  the  person  or  persons  enti- 
tled thereto,  after  payment  of  the  arrearages  of  said  dower,  and  legal 
costs  and  charges  of  such  distress.  Witness  the  hand  and  seal  of 
the  said  Eva  Hauser,  at  Westpenn  township  aforesaid,  the  5th  day 
of  January,  A.  D.  1828. 

It  is  admitted,  that  four  years'  interest  was  due  and  unpaid,  to  wit 
240  dollars,  at  the  issuing  of  the  warrant  aforesaid. 

January  7th,  1828.  David  Turner  the  defendant  above  named,  in 
pursuance  of  said  warrant,  made  distress  on  the  premises  aforesaid, 
charged  with  the  widow's  thirds  aforesaid,  and  took  of  the  goods  and 
chattels  of  the  plaintiff's  intestate  being  thereon,  amounting  to  248 
dollars.  It  is  also  admitted,  that  regular  notice  of  such  distress  was 
served  on  the  widow  and  representatives  or  heirs  of  said  Jacob  Hau- 
ser, the  plaintiff's  intestate,  who  remained  on  said  premises,  and  that 
the  said  distress  was  regularly  appraised  and  sold. 

February  4th,  1828.  David  Hauser,  the  plaintiff,  took  out  letters  of 
administration  to  the  estate  of  his  said  father,  Jacob  Hauser  the 
younger. 

There  exists  on  the  records  of  the  court  of  common  pleas  of  Schuyl- 
kill  county  a  judgment  against  the  said  Jacob  Hauser,  the  plaintiff's 
intestate,  of  530  dollars,  at  the  suit  of  Mary  We.hr  and  Jacob  Wan- 
nemacher,  administrators,  &c.  of  Tobias  Wehr  deceased.  Entered  up 
to  July  term  1820.  No.  152. 

And  it  is  admitted  that  the  estate  of  the  said  Jacob  Hauser,  the 


422  SUPREME  COURT  [Lancaster, 

[Turner  v.  Mauser.] 

plaintiff's  intestate,  is  insolvent,  and  not  sufficient  to  pay  the  whole 
of  the  judgments. 

If  the  court  shall  be  of  opinion,  upon  the  above  statement  of  facts, 
that  Eva  Hauser  had  a  right  to  make  the  distress  aforesaid,  and  had 
a  right  to  take  the  proceeds  thereof  to  the  satisfaction  of  her  interest ; 
then  judgment  in  favour  of  the  defendant. 

If  the  court  shall  be  of  opinion  that  Eva  Hauser  had  no  right  to  make 
the  distress  aforesaid,  and  appropriate  the  proceeds  thereof  to  the  pay- 
ment of  her  interest ;  then  judgment  in  favour  of  the  plaintiff  for  248 
dollars. 

But  if  the  court  shall  be  of  opinion  that  Eva  Hauser  had  no  right 
to  make  the  distress,  but  that  she  would  be  entitled  to  a  pri- 
ority of  payment  for  one  year's  interest  out  of  any  assets  in  the 
hands  of  the  plaintiff  as  administrator ;  then  judgment  in  favour  of 
the  plaintiff  for  the  sum  of  188  dollars  only. 

The  error  assigned  was,  that  the  court  ought  to  have  given  judg- 
ment for  the  defendant. 

Bannon,  for  the  plaintiff  in  error,  argued,  that  the  interest  of  the 
widow  is  a  charge  upon  the  land,  for  which  the  tenant  is  liable  only 
in  respect  of  the  land.  It  is  recoverable  as  rents  are  recoverable,  by 
distress,  &c.  ;  it  is  not  a  rent ;  but  all  the  personal  property  of  the 
tenant  found  upon  the  land  may  be  distrained,  and  the  death  of  the 
tenant,  or  his  insolvency,  can  make  no  difference.  If  this  be  not  the 
correct  doctrine,  she  would  be  without  remedy  in  such  a  case  as  that 
before  the  court;  as  the  act  of  1794,  although  it  provides  for  the 
payment  of  rents,  does  not  include  the  case  of  a  widow's  interest. 

Loeser,  for  the  defendant  in  error,  contended,  that  the  principle 
involved  in  the  case  was  decided.  To  prevent  a  scramble  among 
creditors,  the  fourteenth  section  of  the  act  of  1794  directs  the  order  in 
which  debts  of  a  decedent  shall  be  paid,  and  the  assets  distributed. 
A  plaintiff  who  sues  out  execution  against  the  estate  of  an  intestate 
gains  no  preference  by  so  doing.  A  landlord,  under  the  act  of  1794, 
comes  in  for  one  year's  rent.  A  widow,  by  the  acts  of  1794  and  1807, 
Purdon  407,  412,  as  to  her  interest,  is  placed  on  the  same  footing  ; 
she,  therefore,  could  no  more  obtain  a  preference  by  distraining  in 
regard  to  these  assets,  which  are  disposed  of  by  the  act  of  assembly, 
than  the  execution  creditor. 

The  opinion  of  the  Court  was  delivered  by 

ROGERS,  J. — When  partition  is  made  of  an  intestate's  real  estate, 
and  there  is  a  widow  living,  and  entitled  to  a  part  of  the  real  estate 
during  life,  an  estimate  is  made  of  the  value  of  her  part,  which  is 
apportioned  in  the  manner  prescribed  by  the  act  of  the  7th  of  April 
1807.  On  confirmation,  the  ascertained  value  is  directed  to  remain 
a  charge  on  the  shares  of  the  children  or  representatives,  the  interest 
of  which  the  court  orders  to  be  annually  and  regularly  paid  to  the 


May  1833.]  OF  PENNSYLVANIA.  423 

[Turner  v.  Hauser.] 

widow.  When  there  is  a  failure  of  payment,  the  interest  of  the 
widow  may  be  recovered  by  action  of  debt,  or  by  distress,  as  rents  are 
usually  recoverable  in  this  commonwealth.  In  pursuance  of  the  act 
referred  to,  the  orphan's  court  of  Schuylkill  county  adjudged  a  cer- 
tain tract  of  land  to  the  plaintiff's  intestate,  and  charged  the  same 
with  the  payment  of  1000  dollars,  the  interest  to  be  paid  to  the 
widow  during  life.  Jacob  Hauser  the  younger  died  intestate  and 
insolvent.  The  act  makes  the  interest  of  the  widow  a  charge 
on  the  real  estate  :  and  if  that  were  the  fund  to  be  affected,  a  differ- 
ent case  might  be  presented  ;  but  here  the  widow  demands  satisfac- 
tion out  of  the  personal  assets.  The  legislature  say,  that  the  annual 
charge  may  be  recovered  by  action  of  debt,  or  by  distress,  as  rents 
are  usually  recoverable  in  this  commonwealth.  Had  the  widow 
brought  an  action  of  debt  against  the  administrators,  it  would  scarcely 
be  contended  that  she  would  be  entitled  to  more  than  her  share  of 
the  assets,  and  in  the  order  prescribed  in  the  act  for  the  payment  of 
debts.  And  it  is  equally  plain,  that  had  no  distress  been  made,  the 
administrators  would  not  have  been  justified  in  paying  more  than  one 
year's  interest,  as  in  case  of  rent.  What  meaning  then  must  we 
attach  to  the  words — to  be  recovered  by  action  of  debt,  or  by  distress, 
as  rents  are  usually  recoverable  in  this  commonwealth.  The  fair 
construction,  I  take  it  (and  it  is  one  in  her  favour),  is  to  place  her 
in  the  situation  of  a  landlord,  and  to  give  her  the  same  remedy  a 
landlord  has  against  a  tenant.  The  extent  of  this  is  given  in  the 
fourteenth  section  of  the  act  of  1794.  First,  physic,  funeral  ex- 
penses, and  servants'  wages  are  to  be  paid  ;  and  secondly,  rents, 
not  exceeding  one  year.  Without  the  benefit  of  this  construction, 
the  widow  would  be  only  entitled  to  payment  as  a  lien  or  judgment 
creditor.  The  remedy  which  the  landlord  may  choose  to  adopt  can 
not  alter  the  case  ;  for  otherwise,  in  all  cases  where  the  rent  was  in 
arrear  longer  than  one  year,  he  would  of  course  distrain,  and  in  this 
way  defeat  the  order  of  payment  prescribed  in  the  act.  The  rights 
of  parties  ought  not  to  depend  on  the  nature  of  the  remedy,  as  was 
decided  in  Lesher  v.  Levi,  15  Serg.  fy  Rawle  108.  No  act  of  the  par- 
ties after  the  death  of  an  intestate  can  vary  the  rights  of  creditors. 
Judgment  affirmed. 


424  SUPREME  COURT  [Lancaster, 


Kiehner  against  Dengler. 

A  terre  tenant  having  had  an  opportunity  to  defend  his  title  against  the  lien  of  a 
judgment,  and  not  having  availed  himself  of  it,  is  concluded  ;  and  a  purchaser  at  a 
sheriff's  sale  upon  such  judgment  revived  with  notice  to  the  terre  tenant,  is  entitled 
to  recover  the  land  in  ejectment  against  him. 

APPEAL  from  the  circuit  court  of  Schuylkill  county. 

This  was  an  action  of  ejectment  by  William  Kiehner  and  Peter 
Filbert  against  George  Dengler,  for  three  acres  of  land. 

Plaintiffs  and  defendants  claimed  title  under  Jacob  Dreibelbis,  in 
whom  the  land  in  dispute  was  vested  the  16th  of  October  1799. 

Plaintiffs'  title  founded  upon  the  following  evidence,  to  wit : 

1819,  27th  July,  judgment  at  the  suit  of  Jacob  Reber  against  Ja- 
cob Dreibelbis  and  Daniel  Dreibelbis,  entered  up  to  July  term  1819, 
400  dollars. 

1828,  October  term,  fieri  facias,  issued  the  6th  September  1828, 
levied  on  the  land  in  dispute. 

1828,  December  term,  venditioni  exponas,  to  which  sheriff  returned, 
land  knocked  down  to  Berger  and  others,  who  did  not  pay,  and 
therefore  unsold  for  want  of  buyers. 

1829,  July  term,  alias  venditioni  exponas,  to  which  the  sheriff  re- 
turned, land  sold  to  William  Kiehner  and  Peter  Filbert,  the  plaintiffs 
in  this  suit. 

1829,  July  23,  sheriff's  sale  to  plaintiffs,  who  were  previously 
served  with  notice  of  defendants'  claims. 

1829,  July  28,  the  sheriff  executed  a  deed  to  the  plaintiffs  for  the 
land  in  question. 

1829,  March  term,  scire  facias,  issued  at  the  suit  of  the  said  Jacob 
Reber  against  the  said  Jacob  Dreibelbis  and  Daniel  Dreibelbis,  to  re- 
vive the  said  judgment  for  another  period  of  five  years,  to  which  the 
sheriff  returned,  served  on  Jacob  Dreibelbis,  one  of  the  defendants,  and 
on  George  Dengler,  terre  tenant. 

No  appearance  was  entered  for  either  defendants,  nor  for  George 
Dengler. 

1829,  July  31,  the  following  entry  was  made  upon  the  record,  to 
wit :  on  motion  of  C.  Loeser,  the  court  order  that  the  judgment  be 
revived  for  another  period  of  five  years. 

Defendants,  the  heirs  of  George  Dengler,  claimed  to  hold  the  land 
in  question  by  virtue  of  a  deed  of  conveyance,  executed  the  llth  of 
August  1828,  by  Jacob  Dreibelbis  to  George  Dengler,  the  defendants' 
intestate. 

Upon  which  state  of  facts  the  court  charged  the  jury,  if  George 
Dengler  intended  to  claim  and  hold  the  land  in  dispute  under  this 


May  1833.]  OF  PENNSYLVANIA.  425 

[Kiehner  v.  Dengler.] 

deed,  or  by  any  other  means,  it  was  his  duty  to  have  appeared  in 
court  after  having  been  served  with  the  writ  of  scire  facias,  and  as- 
serted his  claim  ;  having,  however,  declined  to  do  so,  he  is  concluded 
and  estopped  from  doing  it  now,  his  deed  cannot  avail  him. 

The  counsel  for  defendants  moved  the  court  for  a  new  trial,  alleg- 
ing error  in  the  above  stated  charge  of  the  court.  Motion  overruled, 
and  judgment  entered  for  plaintiffs,  from  which  defendants  appeal. 

Bannon  and  Biddle,  for  appellant,  cited,  1  Penns.  Rep.  152. 

Loescr,  contra,  cited,  1  Serg.  fy  Rawle  540;  13  Serg.  <$•  Rawle 
444;  17  Serg.  #  Rawle  319. 

Judgment  affirmed. 


Adams  against  Betz. 

A  record  cannot  be  contradicted,  and  must  be  tried  by  itself  when  in  existence  : 
to  refer  to  a  jury  to  decide  the  fact  when  a  judgment  was  entered  is  error. 

ERROR  to  the  common  pleas  of  Berks  county. 

This  was  a  controversy  between  two  judgment  creditors  of  George 
Dessler.  The  plaintiffs  claimed  under  a  judgment  entered  to  January 
term  1816,  and  regularly  revived  by  scire  facias  to  January  term  1821. 
William  and  Samuel  Moore  claimed  under  a  judgment  entered  in  their 
favour  against  the  same  defendants  on  the  27th  of  October  1814,  on 
which  a  scire  facias  issued  the  27th  day  of  September  1819.  The 
court  charged  the  jury,  that  "  if  the  judgment  of  William  and  Sam- 
uel Moore  was  entered  of  August  term  1814,  they  have  lost  their 
lien.  If  it  was  entered  of  November  term  1814,  the  scire  facias  issued 
in  due  time,  it  was  revived  and  continued  in  full  force,  and  the  de- 
fendant acted  correctly  in  paying  the  net  proceeds  to  Samuel  Moore. 
The  jury  must  decide  the  fact,  whether  the  judgment  was  entered  of 
August  term  1814,  or  of  November  term  1814,  from  the  evidence. 
The  judgments  by  wan-ant  of  attorney  from  the  7th  day  of  Septem- 
ber 1814  to  the  27th  day  of  October  1814  inclusive,  were  entered  of 
November  term  1814.  This  judgment  of  William  and  Samuel  Moore 
against  George  Dessler  was  among  them,  and  the  last  one  so  entered. 
It  appears  from  the  record  that  the  pen  is  run  through  November  and 
August  written  above  it  on  five  pages.  The  declaration  is  headed 
of  August  term  1814,  and  indorsed  the  22d  of  August  1814.  If  the 
jury  believe  that  the  judgment  was  entered  of  August  term  1814 
the  lien  was  lost,  as  the  scire  facias  issued  on  the  27th  day  of  Sep- 
3o 


426  SUPREME  COURT  [Lancaster, 

[Adams  v.  Betz.] 

tembcr  1819  after  the  expiration  of  the  five  years  from  the  first  day 
of  August  term  1814." 

This  part  of  the  charge  embodies  all  the  principal  facts  on  which 
a  decision  of  the  question  presented  to  this  court  depends.  There 
was,  however,  an  erasure  or  obliteration  in  the  caption  to  the  decla- 
ration of  August  term  1814,  which  appeared  to  have  been  done  while 
the  prothonotary  was  absent  on  military  duty  during  the  late  war, 
and  was  supposed  to  be  in  the  handwriting  of  the  late  Judge  Spayd, 
who  officiated  in  the  office  while  the  prothonotary  was  absent. 

Darling  and  Baird,  for  plaintiff  in  error. 

The  opinion  of  the  Court  was  delivered  by 

Ross,  J. — Three  errors  have  been  assigned.  They  are  all  one 
and  the  same  in  substance,  only  varying  in  the  manner  of  being  pre- 
sented to  the  court.  The  only  question  is,  was  the  court  bound  to 
decide,  whether  Moore's  judgment  was  of  August  or  November  term 
1814,  or  had  they  a  right  to  refer  that  question  to  the  decision  of  a 
jury  ?  The  court  expressly  submitted  the  question  as  a  matter  of 
fact  to  the  jury. 

I  think  it  will  scarcely  be  denied,  that  by  the  acts  of  assembly  and 
the  adjudications  of  the  courts,  the  rights  of  judgment  creditors  have 
been  rendered  very  doubtful,  if  not  insecure  in  this  state.  In  the 
effort  which  has  been  made  to  exonerate  lands  from  the  liens  of 
judgments  after  a  lapse  of  five  years,  a  train  of  decisions  has  been 
made,  almost  extinguishing  every  description  of  lien  on  a  sale  by  the 
sheriff.  No  one  can  tell  what  lien  could  now  be  created  on  land, 
which  would  not  be  extinguished  by  such  a  sale,  unless  that  of  a 
mortgage  under  the  act  of  1830.  Even  this  act  has  not  yet  received 
a  settled  construction.  It  is  much  to  be  regretted  that  it  is  so  obscure, 
as  to  present  difficulties  in  giving  to  it  a  construction  which  will  ac- 
cord with  the  intention  of  the  legislature.  Indeed  it  is  almost  im- 
possible to  discover  from  it  what  the  intention  of  the  legislature  was 
as  respects  the  various  cases  which  come  before  the  court.  It  seems 
to  me,  that  it  would  be  adding  greatly  to  the  uncertainty  which  now 
exists,  to  suffer  a  jury  to  decide  whether  a  judgment  was  entered  of 
one  term  or  of  another,  or  whether  an  interlineation  on  the  face  of 
the  record  was  made  at  the  time  of  the  original  entry  or  not.  It 
would  be  unsafe  to  do  so.  It  would  render  judgments,  and  titles  to 
land  derived  under  a  judgment  uncertain  and  insecure.  If  this 
power  were  exercised  by  a  jury,  it  is  impossible  to  foresee  the  uncer- 
tainty that  would  be  created.  The  priority  of  a  judgment  or  mort- 
gage would  frequently  depend  upon  the  mere  whim  and  caprice  of 
the  jury,  in  cases  where  the  question  arose  in  consequence  of  some 
correction  or  interlineation  made  in  the  record,  and  appearing  on  the 
face  of  it.  There  would  be  no  fixed  and  established  rule  ;  but  in  each 
case  the  question  of  priority  would  be  decided  according  to  the  views 
of  the  particular  jury  who  tried  the  case ;  and  thus  a  judgment  which 


May  1833.]  OF  PENNSYLVANIA.  427 

[Adams  v.  Betz.] 

may  have  been  actually  younger  in  its  date,  might  be  declared  older 
than  a  prior  mortgage  or  judgment.  Such  uncertainty  would  indeed 
be  productive  of  much  mischief;  but  it  is  not  the  law,  and  I  earn- 
estly hope  never  will  be  the  law,  that  a  jury  can  decide  whether  a 
record  be  correct  or  not.  Highly  as  I  appreciate  the  integrity  and 
capacity  of  a  jury  to  determine  matters  of  fact,  in  all  cases  within 
the  legitimate  sphere  of  the  functions  confided  to  them,  I  am  never- 
theless constrained  to  believe,  that  neither  their  habits  nor  their 
occupations  fit  them  for  deciding  questions  of  law.  One  jury  could 
not  fix  a  standard  of  decisions  by  which  another  could  be  governed. 

The  general  principles  of  the  law,  applicable  to  this  point,  are  thus 
laid  down.  A  record  imports  absolute  verity,  and  cannot  be  contra- 
dicted by  evidence,  though  by  a  witness  of  the  best  credit.  1  Roll. 
Ab.  757.  And  again,  records  import  absolute  verity,  and  must  be 
tried  by  themselves,  and  admit  of  no  averment  to  the  contrary.  Co. 
Lit.  117,  b.  260,  a;  3  Bl.  Com.  24,  331.  If  the  question  be  as  to  the 
existence  or  contents  of  a  record  ;  the  trial  is  by  inspection  of  the  re- 
cord itself,  if  it  be  of  the  same  court.  1  Stark.  150  ;  Burk's  Execu- 
tors v.  Tregg,  2  Wash.  Rep.  250 ;  1  Phil.  Evid.  238.  The  cases 
already  quoted  are  sufficient  to  show,  that  where  the  record  is  in 
existence,  it  must  be  proved  by  itself,  on  inspection  by  the  court,  if  a 
record  of  the  same  court ;  and  cannot  be  contradicted.  The  case  of 
Dickson  v.  Fisher,  1  W.  Black.  664,  is  so  applicable  to  the  present 
case,  that  I  will  refer  to  it  more  particularly.  It  was  an  action  for 
bribery  at  the  election  for  members  of  parliament.  The  precept  for 
the  election  had  been  directed  to  the  mayor  and  commonalty,  but  the 
words  "  and  commonalty"  were  struck  through  with  a  pen.  The 
defendant  offered,  but  was  not  permitted  to  give  parol  evidence  to 
prove,  that  the  words  "  and  commonalty"  were  on  the  precept,  and 
not  obliterated,  when  the  same  was  delivered  to  the  mayor,  and  re- 
turned by  him.  The  court  decided,  that  parol  evidence  ought  not 
to  be  admitted  to  vitiate  the  record,  and  to  prove  it  to  have  been 
wrong;  though  it  might  have  been  admitted  to  prove  it  to  be  right. 
They  also  decided,  that  the  precept,  being  found  in  the  proper  office 
with  those  words  obliterated,  shall  be  intended  to  have  been  always 
in  that  plight.  This  case  then  decides,  that  a  record,  found  in  the 
proper  office,  shall  be  intended  to  have  been  always  in  the  same  state 
in  which  it  is  found  ;  and  that  parol  evidence  cannot  be  received  to 
prove  it  is  wrong,  though  it  might  be  admitted  to  show  it  is  right. 
The  charge  of  the  court  is  in  direct  contradiction  to  the  principle  laid 
down  in  this  case  ;  which  is  conclusive  against  the  right  of  the  jury 
to  decide  the  question  submitted  to  them  by  the  court  below. 

In  England,  the  minutes  from  which  a  record  is  afterwards  made 
up,  do  not  themselves  constitute  a  record.  There  the  record  is  never 
considered  such  until  enrolled.  It  will  appear  by  note  b  to  page  238 
of  Phillips' s  Evid.  (Ed.  of  1820),  that  it  has  been  decided,  that  the 
indorsement  of  the  clerk  of  enrolments  of  the  day  of  enrolments, 
by  way  of  date,  is  part  of  the  record,  and  cannot  be  averred  against ; 


428  SUPREME  COURT  [Lancaster, 

[Adams  v.  Betz.] 

nor  is  evidence  admissible  to  show,  that  in  fact  it  was  enrolled  on 
some  other  day  ;  and  this,  although  the  date  be  written  on  an  era- 
sure. I  am  aware  of  the  dicta  of  Chief  Justice  M'Kean  in  1  Dall. 
65,  on  the  authority  of  Alleyn  18  ;  also  of  the  case  in  1  Salk.  285  ; 
1  Ventr.  259,  7;  12  Vin.  124,  248;  2  Roll.  M.  675,  pi.  20;  Sty. 
22,  34  ;  and  Hardr.  120.  But  upon  an  examination  of  these  cases, 
I  apprehend  it  will  be  found,  that  the  parol  proof  was  only  admitted 
where  the  record  was  lost,  or  so  obliterated  as  not  to  be  legible  ;  and 
that  any  opinion  which  is  given  in  these  cases,  as  to  the  admission 
of  parol  evidence,  can  only  be  considered  as  the  dictum  of  the  judges, 
because  it  was  not  the  point  presented  for  decision.  They  will  not 
be  found  to  militate  against  the  cases  which  support  the  doctrine, 
that  a  record  cannot  be  contradicted,  and  must  be  tried  by  itself, 
when  in  existence.  I  am  therefore  of  opinion,  that  the  court  erred 
in  referring  it  to  the  jury  as  a  fact  which  they  must  decide  ;  and 
consequently  the  judgment  must  be  reversed,  and  a  venire  facias  de 
now  awarded. 
Judgment  reversed,  and  venire  de  novo  awarded. 


Graff  against  Graybill. 

A  statement  in  an  action  of  assumpsit,  which  is  defective  for  want  of  the  date 
when  the  assumption  was  made,  is  cured  by  a  verdict;  so  also  where  the  consideration 
for  the  assumption  is  not  stated. 

In  an  action  of  assumpsit,  where  the  writ  demanded  a  sum  not  exceeding  600  dol- 
lars, a  verdict  and  judgment  for  1300  dollars,  made  up  of  a  principal  less  than  600 
dollars  and  interest,  is  good. 

Upon  a  statement  in  an  action  of  assumpsit,  claiming  800  dollars,  the  plaintiff  may 
recover  1300  dollars,  if  the  excess  above  the  800  dollars  be  made  up  of  interest. 

ERROR  to  the  district  court  of  Lancaster  county. 

All  the  facts  of  this  case  are  fully  stated  in  the  opinion  of  the 
Court,  which  was  delivered  by 

HUSTON,  J. — This  suit  was  brought  in  1816  by  Jacob  Graybill  to 
recover  a  sum  of  money.  The  statement  of  the  plaintiff's  claim,  filed 
under  our  act  of  assembly,  was  as  follows: 

"  This  suit  is  brought  to  recover  the  balance  due  on  a  bond  given 
by  Conrad  Crim  and  John  Speekler,  for  the  payment  of  800  dollars 
to  Randal  M'Clure  on  the  1st  of  April  1815,  and  transferred  to  the 
plaintiff  on  the  12th  of  August  1814,  which  defendant  promised  to 
pay,  as  part  of  the  purchase  money  of  the  house  and  lot  of  Conrad 
Crim,  purchased  by  the  defendant  from  Crim,  and  of  which  he  has 
paid  on  account  of  the  plaintiff,  in  the  Lancaster  Reading  Company, 
320  dollars." 


May  1833.]  OF  PENNSYLVANIA.  429 

[Graff  v.  Graybill.] 

We  have  not  the  evidence  given  to  the  jury,  and  can  only  conjec- 
ture what  any  part  of  it  was  from  the  expressions  used  by  the  judge 
in  his  charge  to  them.  He  says,  "  the  plaintiff  has  not  filed  a  decla- 
ration, but  a  statement  under  the  act  of  assembly.  The  defendant 
does  not  demur  to  the  statement,  but  desires  the  court  to  give  you 
their  opinion  whether  it  contains  a  sufficient  cause  of  action.  The 
court  give  it  to  you  as  their  opinion,  that  it  does  contain  a  cause  of 
action  on  which  you  may  find  a  verdict,  if,  on  consideration  of  the 
facts  in  the  case,  you  think  there  is  a  balance  due  to  the  plaintiff. 
If  the  statement  be  not  formal,  or  according  to  the  provisions  of  the 
act  of  assembly,  the  defendant  can  take  advantage  of  the  defect,  on 
a  motion  in  arrest  of  judgment,  or  on  a  writ  of  error,  which  is  the 
proper  mode  of  taking  advantage  of  such  defects. 

"  If  you  are  of  opinion  the  defendant  did  promise  to  pay  the  plain- 
tiff the  amount  of  the  bond  in  question,  or  the  balance  due  thereon, 
in  part  of  the  purchase  money  of  the  house  and  lot  he  had  purchased 
of  Conrad  Crim,  and  that  he  had  got  credit  with  Conrad  Crim  for 
the  amount  of  the  bond,  in  settling  the  purchase  money  of  the  house 
and  lot  with  him,  he  could  not  afterwards  discharge  himself  from  his 
promise  to  pay  Graybill,  by  paying  to  Conrad  Crim  the  money  which 
he  had  promised  to  pay  Graybill,  unless  Graybill  had  released  him 
in  the  meantime,  or  given  him  authority  to  pay  the  money  to  Con- 
rad Crim.  Of  this  you  will  judge." 

The  jury  found  for  the  plaintiff  480  dollars,  and  interest  till  the  time 
of  verdict  rendered  868  dollars  87  cents ;  in  all  1348  dollars  87  cents. 

There  was  no  motion  for  a  new  trial ;  nor  is  there  here  any  alle- 
gation of  error  in  the  charge,  as  it  relates  to  the  merits  of  the  cause, 
on  the  facts ;  but  reasons  in  arrest  of  judgment  were  filed  and  over- 
ruled, two  of  which  are  the  same  assigned  here  as  errors.  The  third 
error  assigned  was  not,  so  far  as  we  see  or  hear,  mentioned  in  the 
court  below. 

Errors  assigned.  1.  The  statement  filed  in  this  cause  does  not 
state  the  date  of  the  assumption,  nor  the  amount  which  the  plaintiff 
claims  to  be  justly  due  from  the  defendant,  according  to  the  provi- 
sions of  the  fifth  section  of  the  act  of  the  21st  of  March  1806. 

2.  There  is  no  consideration  mentioned  in  the  statement  filed  for 
the  promise  of  the  defendant,  neither  of  benefit  to  the  defendant,  nor 
of  trouble  or  prejudice  to  the  plaintiff. 

3.  The  verdict  and  judgment  are  erroneous,  inasmuch  as  both  are 
rendered  for  plaintiff  for  868  dollars ;  and  the  summons  is  in  debt  on 
parol  contract  not  exceeding  600  dollars. 

The  fifth  section  of  the  act  of  1806  is  in  these  words  :  "  it  shall 
be  the  duty  of  the  plaintiff,  by  himself,  his  agent  or  attorney,  to  file 
in  the  office  of  the  prothonotary  a  statement  of  his  or  their  demand, 
particularly  specifying  the  date  of  the  promise,  book  account,  note, 
bond,  penal  or  single  bill,  or  any  or  all  of  them  on  which  the  demand 
is  founded ;  and  the  whole  amount  of  what  he,  she  or  they  believe  is 
justly  due  to  him,  her  or  them,  from  the  defendant." 


430  SUPREME  COURT  [Lancaster, 

[Graff  v.  Graybill.] 

It  has  been  said  this  act  was  drawn  in  a  spirit  hostile  to  the  pro- 
fession of  lawyers,  and  intended  to  enable  every  man  to  conduct  his 
own  business  in  court.  If  so,  it  has  failed  in  both  respects;  it  has 
not  lessened  the  emoluments  of  the  profession,  and  few  men  ever 
attempt  to  conduct  a  suit  in  court.  The  arbitration  clauses  and 
the  above  were  perhaps  intended  to  enable  men  to  recover  a  plain 
debt,  without  the  interference  of  lawyers. 

The  framers  of  the  law  had,  however,  other  objects  in  view.  To 
a  common  mind,  a  sum  of  money  secured  by  a  note,  or  due  for  goods 
sold  or  work  performed,  &c.  &c.,  was  a  debt,  as  much  as  one  evi- 
denced by  a  note  to  which  the  maker  had  added  a  seal  with  ink  at 
the  end  of  his  name  ;  and  it  was  intended  to  abolish  the  distinction. 
The  counts  in  assumpsit  for  money  had  and  received,  for  money  paid, 
laid  out  and  expended,  for  money  lent  and  advanced,  for  goods  sold, 
and  for  work  done,  &c.,  which  all  stated  some  day  (but  immaterial 
what  day),  and  a  sum  of  money  as  due  in  which  there  was  no  regard 
to  the  actual  amount  claimed,  though  well  enough  calculated  to  do 
justice  generally,  were  nevertheless  a  great  aberration  from  the  rules 
of  pleading,  which  required  the  narrator  to  state  the  claim,  so  that 
the  defendant  might  know  what  he  was  to  answer,  and  that  the 
record  of  one  suit  might  be  evidence  to  protect  the  defendant  from 
another  suit  for  the  same  cause.  In  short,  it  amounted  very  often, 
in  point  of  fact,  to  trying  a  cause  without  any  notice  of  the  demand. 
It  was,  however,  alike  in  this,  that  the  plea  of  non  assumpsit  often 
gave  as  little  notice  of  the  defence.  It  was  intended  that  the  state- 
ment, substituted  for  this  string  of  counts,  should  inform  the  defend- 
ant whether  the  demand  was  a  promise  express  or  implied,  a  book 
account,  a  note  or  a  specialty,  or  how  many  of  them,  the  date  and 
amount  of  each.  And  if  the  act,  instead  of  being  abused  by  the 
profession,  and  harshly  spoken  of  by  the  courts,  had  met  with  other 
treatment,  and  attempts  had  been  made  to  give  it  effect  fairly,  it 
would,  in  some  respects,  have  been  an  improvement  of  the  law,  and 
is  clearly  so  considered  in  some  districts  of  the  state,  where  the  law- 
yers and  the  judges  have  endeavoured  to  construe  it  and  practise 
under  it  in  such  way  as  all  laws  regulating  practice  ought  to  be 
construed  and  practised  on.  The  act  requires  a  counter  statement  of 
his  defence  by  the  defendant.  This  has  every  where  been  disre- 
garded, so  far  as  I  know,  except  in  our  district;  and  yet  nothing  has 
a  greater  tendency  to  fairness  and  expedition  in  the  trial  of  causes. 
When  fairly  acted  on,  it  often  leaves  little  to  be  decided  by  the  court 
and  jury. 

All  lawyers  practise  under  this  law;  that  is,  they  file  statements, 
and  too  often  so  badly  drawn  that  their  clients  could  have  done  it  as 
well.  And  statements  are  too  often  filed  in  cases  not  within  the 
law.  It  has  been  said  there  is  no  demurrer  to  a  statement,  but  this 
is  not  true,  at  least  where  a  statement  is  filed  in  a  case  requiring  a 
declaration ;  nor  generally  true,  though  perhaps  the  law,  as  was  the 
practice  before,  permits  an  amendment  after  decision  on  a  demurrer. 


May  1833.]  OF  PENNSYLVANIA.  431 

[Graff  v.  Graybill.] 

This  court  has  endeavoured  to  give  the  law  a  fair  construction. 
The  same  nicety  and  precision  in  averments  requisite  in  a  formal 
declaration,  have  been  declared  not  necessary  in  a  statement ;  but 
whatever  was  necessary  as  proof,  to  enable  a  plaintiff  to  recover  on  a 
declaration,  is  also  necessary  to  be  proved  on  a  statement,  and  it 
appears  the  proof  was  given  here.  6  Serg.  fy  Rawle  54 ;  8  Serg. 
fy  Rawle  263  ;  6  Serg.  fy  Rawle  26. 

The  sixth  section  of  the  same  act  directs  that  no  plaintiff  shall  be 
nonsuited  for  any  informality  in  any  statement  or  declaration  filed, 
&c.  ;  but  when,  in  the  opinion  of  the  court,  such  informality  will 
affect  the  merits  of  the  cause  in  controversy,  the  plaintiff  shall  be 
admitted  to  amend  his  declaration  or  statement,  and  the  defendant 
to  alter  his  plea  or  defence,  on  or  before  the  trial  of  the  cause  ;  and  if 
by  such  attestation  or  amendment,  the  adverse  party  is  taken  by  sur- 
prise, the  cause  shall  be  continued  till  the  next  court. 

It  has  been  said  that  this  act  does  not  vary  the  law  on  the  subject 
of  amendments,  nor  enlarge  it ;  and  this  I  agree  to,  with  the  excep- 
tion that  it  allows  amendments  during  the  trial.  Certainly,  however, 
it  leaves  all  the  statutes  of  amendment  in  full  force ;  they  are  reported 
to  be  in  force  by  the  judges  of  this  court,  to  whom  the  matter  was 
referred,  and  it  has  never  been  alleged  they  do  not  apply  to  causes 
tried  on  statement,  as  well  as  those  tried  on  declaration. 

The  first  error  assigned  is,  that  the  statement  does  not  give  the 
date  of  the  assumption,  nor  amount  of  the  plaintiff's  claim.  A  date 
was  as  necessary  in  a  declaration  as  in  a  statement,  but  a  wrong 
date,  or  no  date,  is  expressly  cured  after  verdict  by  those  statutes  ; 
and  so  of  the  sum  demanded  :  so  completely  so,  that  any  date,  and 
any  sum,  provided  the  first  was  before  suit,  and  the  last  large  enough, 
was  good  :  nay,  in  the  action  of  assumpsit,  the  date  and  sum  were 
laid  without  any  regard  to  what  the  proof  would  be  ;  and  this,  which 
sometimes  misled  the  defendant,  was  a  reason  for  passing  our  act. 
It  is  not  necessary,  in  laying  a  parol  promise  in  a  statement,  to  lay 
the  very  day  which  the  witnesses  will  mention  ;  nor,  where  a  day  is 
laid,  is  it  necessary  that  the  witness  will  be  able  to  specify  any.  If 
in  this  case  the  promise  had  been  laid  on  the  10th  of  August  1815, 
it  would  be  sufficient,  if  proved  to  have  been  in  that  year,  and  in 
August,  or  even  if  the  witness  could  not  have  been  positive  whether 
in  July  or  August  or  September.  It  is  often  possible  to  prove  a  con- 
tract most  clearly  as  to  its  terms,  and  yet  the  witness  or  witnesses 
may  not  be  able  to  fix  its  precise  date  ;  and  it  never  could  be  right  so 
to  construe  an  act  made  to  facilitate  the  administration  of  justice,  as 
to  render  it  impossible,  in  half  the  cases  in  court,  to  proceed  at  all. 

After  verdict  then,  the  omission  of  the  date  and  sum  would  be 
cured :  but  the  material  date,  viz.  when  he  was  to  pay,  was  given — 
it  is  stated  to  be  the  14th  of  April  1815  ;  so  is  the  sum,  800  dollars, 
of  which  the  defendant  is  stated  to  have  paid  320  dollars;  and 
although  the  balance  is  not  struck,  that  is  so  apparent,  as  that  the 
omission  to  do  it  can  not  be  seriously  thought  any  defect.  The  de- 


432  SUPREME  COURT  [Lancaster, 

[Graff  v.  Graybill.] 

fendant  was  bound  to  show  when  the  payment  was  made ;  it  was 
his  defence  ;  and  if  nothing  more  appeared,  it  must  be  taken  to  have 
been  paid  on  the  14th  of  April  1815,  when  the  whole  was  due. 

It  is  said  no  consideration  is  laid.  The  word  consideration  is  not 
in  the  statement,  but  it  is  impossible  to  misunderstand  the  claim. 
Crim  owed  the  plaintiff  800  dollars;  Crim  sold  to  the  defendant  a 
house  and  lot;  and  the  defendant,  instead  of  paying  Crim  for  the 
house  and  lot,  agreed  to  pay  the  plaintiff  the  800  dollars  which  Crim 
owed  him.  The  defendant  got  the  house  and  lot  for  this  money. 
All  the  averments  in  a  declaration  are  not  necessary  in  a  statement. 
It  is  not  stated  that  Crim  agreed  to  this  arrangement;  but  we  believe 
that  it  was  proved,  not  only  that  he  agreed  to  it,  but  that  on  the 
defendant's  promising  to  pay  the  plaintiff,  Crim  settled  with  him,  and 
gave  him  credit  for  800  dollars  of  the  purchase  money. 

There  is  one  other  matter  assigned  for  error.  The  summons  was 
in  debt  not  exceeding  600  dollars,  and  the  verdict  and  judgment  are 
for  868  dollars  87  cents.  In  a  declaration,  the  debt  would  be  laid  to 
be  480  dollars  and  interest,  and  damages  for  the  detention.  In  the 
statement  the  demand  is  for  480  dollars,  payable  on  the  14th  of  April 
1815,  and  in  this  state  interest  is  always  given  on  money  due  and 
detained.  This  suit  was  brought  in  1816.  There  is  no  end  to  a  suit 
in  this  county.  The  whole  demand  was  under  600  dollars  when  the 
writ  issued ;  procrastination  has  occasioned  the  interest  to  exceed 
that  sum,  and  there  is  nothing  wrong  in  this  particular. 

I  do  not  say  a  plaintiff  can  recover  a  larger  sum  than  he  claims  in 
his  writ  and  statement.  I  only  say  he  can  recover  that  sum,  and 
interest  till  the  trial,  if  the  jury  find  so  much  due  to  him.  This  was 
expressly  decided.  8  Serg.  4*  Rawle  263.  The  statement  claimed 
1525  dollars,  due  on  the  6th  of  February  1816,  and  verdict  for  that 
sum  and  interest,  and  held  good  in  error.  The  act  directs  that  the 
statement  shall  specify  the  sum  which  the  plaintiff  believes  is  due  at 
that  time.  If  interest  can  be  allowed,  it  must  be  in  addition  to  this 
sum.  Whether  the  plaintiff  can  in  any  case  recover  as  principal 
more  than  is  in  the  statement,  is  another  question. 

There  is  one  other  matter  I  will  mention.  After  all  the  evidence 
was  heard  without  objection,  the  defendant  asked  the  court  to  tell 
the  jury,  that  the  statement  did  not  contain  a  sufficient  cause  of 
action ;  which  seems  to  amount  to  a  kind  of  demurrer  on  terms,  to  be 
decided  by  the  court  and  jury.  The  defendant  ought  to  have  de- 
murred, or  objected  to  the  evidence ;  but  as  the  law  compelled  the 
court  to  permit  an  amendment,  this  is  never  done;  and  if  not  done, 
we  must  take  it,  all  objections  to  the  statement  are  waived.  After  the 
evidence  is  closed  a  defendant  may  demur  to  it,  or  in  the  olden  time 
might  have  asked  the  court  to  say  whether  the  plaintiff's  evidence  sup- 
ported his  narration,  and  moved  for  a  nonsuit:  which  it  is  decided  in 
this  state  the  court  can  not  direct  against  the  consent  of  the  plaintiff. 
But  until  lately,  the  application  to  the  court  to  direct  the  jury  as  to 
the  sufficiency  of  narration  or  statement  was  never  heard  of,  and 


May  1833.]  OF  PENNSYLVANIA.  433 

[Graff  v.  Graybill.] 

never  ought  to  be  heard  of  again.  The  jury  have  nothing  to  do 
with  demurrers,  oral  or  written,  and  the  court  ought  to  refuse  to  give 
them  any  directions  on  this  subject.  Some  time  or  other,  and  I  wish 
very  soon,  it  will  be  known  in  this  state  that  this  court  will  not  re- 
verse for  matters  expressly  cured  by  the  statutes  of  jeofails;  nor 
because  our  practice  is  already  loose,  make  it  more  so  by  referring 
the  decision  on  forms  to  the  jury. 
Judgment  affirmed. 


Malson  against  Fry. 

If  it  be  the  opinion  of  the  court,  that  all  the  facts  given  in  evidence  by  a  plaintiff, 
if  true,  fail  to  establish  his  right  to  recover ;  it  is  their  duty  so  to  instruct  the  jury. 
And  if  a  jury  should  find  a  verdict  against  such  instruction,  a  new  trial  ought  to  bo 
granted. 

The  facts  of  one  in  possession  of  land  having  been  driven  from  it  by  a  flood  or  other 
accident,  and  when  out  kept  out  of  possession  by  the  force  of  an  adverse  claimant ; 
although  he  may  continue  to  endeavour  to  obtain  the  possession,  yet  the  statute  of 
limitations  will  be  a  bar  to  his  recovery,  after  such  adverse  claimant  has  been  in  pos- 
session twenty-one  years. 

This  court  will  not  reverse  a  judgment  for  error  in  the  instruction  of  the  court 
below  to  the  jury  on  one  point,  when  they  were  right  in  saying,  on  another  point, 
that  if  all  the  plaintiff's  evidence  be  true,  he  is  not  in  law  entitled  to  recover. 

ERROR  to  the  district  court  of  Lancaster  county. 

This  was  an  action  of  ejectment  by  Ephraim  Malson  and  others, 
heirs  at  law  of  Thomas  Malson  deceased,  against  John  Drift  and  John 
Fry,  for  three  islands  in  the  Susquehannah  river  in  Manor  township, 
Lancaster  county,  containing  altogether  about  sixty  acres.  During 
the  progress  of  the  trial  many  bills  of  exception  to  the  admission  of 
evidence  were  taken  ;  but  the  court  below  being  of  opinion,  that  if 
all  the  plaintiffs'  evidence  were  true  they  could  not  recover,  that 
point  alone  was  decided  by  this  court.  The  evidence  on  that  sub- 
ject was,  that  Thomas  Malson,  the  father  of  the  plaintiffs,  obtained 
the  possession  of  the  islands  in  dispute  and  had  cultivated  them  for 
some  years,  when  he  was  driven  from  them  by  the  "  pumpkin  flood" 
in  1784.  Before  he  returned,  Jacob  Dritt,  under  whom  the  defend- 
ants claimed,  had  obtained  the  possession  ;  and  when  Malson  came 
back,  Dritt  repelled  him,  and  kept  the  possession  by  force.  At  seve- 
ral other  times  Malson  attempted  to  get  the  possession  again,  but 
always  failed.  The  defendants,  and  those  under  whom  they  claim, 
had  been  in  possession  for  forty  years  before  this  suit  was  brought ; 
and  the  proof  was,  that  during  all  this  time  Malson,  and  his  heirs 
after  his  death,  were  continually  exerting  themselves  to  re-obtain  the 
possession. 

Upon  this  evidence  ap  to  the  possession,  the  court  below  was  of 
3  E 


434  SUPREME  COURT  [Lancaster, 

[Malson  v.  Fry.] 

opinion,  that  the  statute  of  limitations  was  a  conclusive  bar  to  the 
plaintiff's  recovery,  and  so  instructed  the  jury,  who  found  a  verdict 
accordingly. 

Frazer  and  Champneys,  for  plaintiffs  in  error. 
Jenkins  and  Hopkins,  for  defendants  in  error. 

The  opinion  of  the  Court  was  delivered  by 

KENNEDY,  J. — No  less  than  twenty  errors  have  been  assigned ; 
but  if  the  court  below  were  right  in  answering  the  first  point  of  the 
defendant,  which  is  made  the  ground  of  the  twelfth  error,  all  the 
other  matters  complained  of  as  error  become  immaterial  and  irrele- 
vant ;  for  even  supposing  there  be  error  in  some  of  them,  yet  when 
corrected,  by  no  possibility  could  they  aid  the  plaintiff's  recovery. 
Edgar  v.  Boies,  1 1  Serg.  fy  Rawle  450. 

The  answer  of  the  district  court  then  to  the  defendant's  first  point, 
was  in  substance  a  direction  to  the  jury,  that  admitting  all  the  facts 
and  circumstances,  of  which  the  plaintiffs  gave  any  evidence,  to  be 
true,  still  they  had  not  shown  such  a  title  to  the  possession  of  the 
land  in  dispute  as  in  law  entitled  them  to  a  verdict  in  their  favour. 

This  matter  being  assigned  for  error,  has,  as  may  be  observed, 
necessarily  brought  up  before  us  the  whole  of  the  evidence  which 
was  given  by  the  plaintiffs  on  the  trial  of  the  cause.  It  also  appears 
from  the  record  and  proceedings  returned,  that  all  the  evidence  offered 
by  the  plaintiffs  was  received,  excepting  the  record  of  an  indictment 
and  the  proceedings  thereon,  in  the  quarter  sessions  of  Lancaster 
county,  at  March  sessions  1828,  which  was  clearly  not  admissible, 
and  therefore  very  properly  overruled. 

To  the  charge  of  the  court  in  this  behalf,  it  is  objected  by  the 
plaintiffs'  counsel  that  the  court  withdrew  the  matters  of  fact  from 
the  decision  of  the  jury.  Doubtless  wherever  the  facts  in  a  case  are 
controverted,  it  belongs  exclusively  to  the  jury  to  decide  on  them : 
ad  questionem  facti  juratores  respondent  is  the  maxim.  But  in  this 
case,  after  the  plaintiffs  had  given  all  their  evidence,  the  defendants' 
counsel  put  it  to  the  court  and  jury  in  such  a  manner  as  to  free  the 
case  from  all  dispute  or  controversy  about  the  facts ;  because,  in 
asking  the  court  to  charge  the  jury  as  they  did  in  their  first  point, 
they  are  to  be  considered  as  conceding  and  admitting  the  truth  of  all 
facts  which,  upon  the  evidence  given  by  the  plaintiffs,  might  be  found 
by  the  jury  in  favour  of  the  plaintiffs.  Now  I  think  it  cannot  be  de- 
nied but  that  it  belongs  to  the  court,  as  a  question  of  law,  to  decide 
whether  evidence  offered  to  be  given  by  a  party  may  or  can  not  con- 
duce to  the  proof  of  a  particular  fact;  otherwise  courts  usurp  a  power 
every  day  that  does  not  belong  to  them,  in  rejecting  evidence  offered, 
because  in  their  opinion  it  does  not  tend  to  prove  or  disprove  the  facts 
put  in  issue  between  the  parties,  and  therefore  irrelevant  and  not 
admissible.  It  is  obvious  that  the  trial  of  a  cause  might  become  in- 
terminable if  the  court  could  not  exercise  such  a  power.  But  to 


May  1833.]  OF  PENNSYLVANIA.  435 

[Malson  v.  Fry.] 

decide  upon  the  relevancy  of  the  evidence,  if  offered  by  the  plaintiff 
in  support  of  his  claim,  the  court  must  necessarily,  as  a  question  of 
law,  decide  whether  the  facts  which  the  evidence  has  a  tendency  to 
prove,  are  or  will  be  sufficient  to  sustain  his  claim.  If,  however,  the 
evidence  should  be  all  given  without  objection,  cannot  .the  court 
decide  as  well  then  as  if  it  had  been  objected  to  before  it  was  given, 
what  the  facts  are  which  it  tends  to  prove,  and  whether  or  not  they 
are  in  law  sufficient  to  support  the  plaintiff's  demand?  Most  un- 
questionably it  may :  and  should  its  attention  be  called  to  the  point 
by  the  counsel  of  the  defendant,  with  a  request  to  charge  the  jury  as 
was  done  in  this  case,  I  consider  it  the  duty  of  the  court,  when  it  is 
decidedly  of  opinion  that  the  evidence  given  by  the  plaintiff,  sup- 
posing it  to  be  all  true,  does  not  tend  to  prove  such  facts  as  will  in 
law  entitle  him  to  recover,  to  tell  the  jury  so;  or,  in  other  words, 
"  taking  every  fact  and  circumstance  given  in  evidence  to  be  true, 
still  the  plaintiff  had  entirely  failed  to  make  out  his  case."  That  the 
court  might  do  so,  was  ruled  expressly  by  this  court  in  the  case  of 
Weidler  v.  The  Farmer's  Bank  of  Lancaster,  11  Serg.  fy  Howie  141. 
And  if  a  jury  were,  after  such  direction  from  the  court,  to  find  a  ver- 
dict for  the  plaintiff,  it  would  be  the  duty  of  the  court  to  set  it  aside 
and  grant  a  new  trial. 

What  then  are  the  facts  which  the  evidence  given  on  the  part  of 
the  plaintiffs  in  this  case  had  a  tendency  to  prove?  In  its  utmost 
extent,  it  can  not  be  claimed  that  it  proved  more  than  that  after  the 
land  in  dispute,  consisting  of  three  islands  in  the  Susquehannah  river 
within  that  part  of  Lancaster  county  in  this  state  which  was  claimed 
by  Lord  Baltimore  as  a  part  of  Maryland,  had  been  granted  by  the 
then  proprietor  of  Maryland,  by  patent  dated  the  22d  of  October  1736, 
to  Thomas  Cressop,  who  by  his  deed  dated  the  18th  of  March  1741 
conveyed  the  same  to  Jacob  Myers  of  Lancaster  county,  Thomas 
Malson,  the  father  of  the  plaintiffs  who  as  his  heirs  claim  the  land, 
was  in  the  possession  of  it  from  fifteen  to  twenty  years  before  the 
autumn  of  1784,  when  a  flood  called  the  "  pumpkin  flood"  came  and 
compelled  him  to  quit  the  possession,  leaving  a  crop  of  corn  growing 
upon  it;  and  when  he  returned  after  the  flood  had  abated  to  resume 
the  possession,  he  found  Jacob  Dritt  in  it,  who  repelled  him  by  force, 
drove  him  off,  and  would  not  let  him  enter.  That  Jacob  Dritt  from 
that  time  kept  Thomas  Malson  out  of  the  possession,  and  continued 
to  possess,  occupy  and  farm  the  islands  by  himself  and  his  tenants, 
till  his  death  in  the  year  1815  or  1816,  when  his  heirs  succeeded  him 
in  the  possession,  and  continued  it  by  themselves  and  their  tenants 
till  the  bringing  of  this  action  on  the  25th  of  October  1819.  That 
in  the  spring  after  the  flood  Thomas  Malson  tried  to  get  into  possess- 
ion, but  Jacob  Dritt  prevented  him,  and  that,  as  one  witness  said, 
"  there  had  been  disputes  about  the  islands  from  that  day  to  this ;" 
and  another  that  "  the  Malsons  have  been  at  variance  with  Dritt 
and  his  executors  about  his  title  to  the  islands."  That  during  this 
period  Jacob  Dritt  built  a  two  story  dwelling  house  upon  one  of  the 


436  SUPREME  COURT  [Lancaster, 

[Maleon  v.  Fry.] 

islands,  and  a  dwelling  house  and  barn  upon  a  second.  That  TTiomas 
Malson  died  about  1813;  and  between  1812  and  1814  when  Jacob 
Dritt  was  about  putting  a  tenant  of  his  of  the  name  of  Skigly  into 
possession,  he  found  some  things  of  William  Malson's,  the  eldest  son 
of  Thomas  Malson,  in  the  house,  which  he  threw  out ;  and  some 
days  after  William  Malson  took  them  away.  That  about  1824,  after 
the  bringing  of  this  action,  Ephraim  Malson,  another  son  of  Thomas 
Malson,  was  in  a  shanty  on  the  island  upon  which  Jacob  Dritt  had 
not  built  a  house,  having  with  him  pots,  kettles,  pans,  and  a  kind  of 
bed.  While  there  he  was  grubbing  and  clearing  upon  it,  when  he 
was  forced  off  from  it. 

From  this  it  appears  that  while  the  title  and  right  to  the  land  in 
dispute  were  vested  in  Jacob  Myers,  Thomas  Malson,  by  intrusion, 
took  the  possession  of  it,  in  which  he  continued  without  shadow  of 
title  for  the  space  of  from  fifteen  to  twenty  years,  when  he  was  ex- 
pelled by  the  flood  ;  and  Jacob  Dritt  took  the  possession  before  his 
return,  and  kept  him  out  by  force  ever  after.  Although  the  possess- 
ion which  Thomas  Malson  had  had  of  the  land  before  the  flood  might 
have  been  sufficient  to  have  enabled  him  to  have  maintained  an 
action  of  ejectment  against  Jacob  Dritt  or  his  tenants,  if  he  entered 
without  title  or  the  authority  of  one  who  had,  or  to  have  prosecuted 
and  supported  an  indictment  for  forcible  detainer;  yet  about  twenty- 
eight  or  twenty-nine  years  after  having  thus  lost  the  possession  he 
died,  without  ever  having  attempted  to  regain  it  in  either  way. 
From  the  spring  of  1785,  as  long  as  he  lived,  there  is  not  a  particle 
of  testimony  tending  to  show  that  he  ever  made  an  entry  and  claim 
upon  the  land ;  nor  that  any  person  did  so  by  his  authority  for  him. 

That  the  possession  of  Jacob  Dritt  was  from  its  commencement, 
and  continued  to  be  throughout,  adverse  and  hostile  to  Thomas  Mal- 
son in  his  claim  to  the  land,  can  not  admit  of  a  shadow  of  doubt. 
That  it  was  continuous  and  notorious  is  equally  clear :  in  short,  that 
it  was  every  thing  under  our  act  of  limitations  to  make  it  a  complete 
and  positive  bar  to  the  plaintiff's  action  is  so  palpable  from  the  evi- 
dence given  by  the  plaintiffs  themselves,  that  the  district  court  could 
scarcely  be  said  to  have  administered  the  law,  and  to  have  discharged 
its  duty,  if  it  had  not  told  the  jury  so.  This,  then,  being  the  condi- 
tion of  the  plaintiffs,  it  follows  necessarily  that  even  if  there  were 
errors  committed  in  other  matters  on  the  trial  of  the  cause,  they  can 
not  prejudice  the  plaintiffs,  and  therefore  would  be  no  good  ground 
for  reversing  the  judgment  upon  this  writ  of  error. 

Judgment  affirmed. 


May  1833.]  OF  PENNSYLVANIA.  437 


Commonwealth  against  Evans. 

The  non-payment  of  a  debt  by  an  administrator  is  not  such  a  breach  of  the  condi- 
tion of  his  administration  bond  as  will  enable  the  creditor  to  sue  it  and  recover  hu 
debt,  without  a  previous  suit  fixing  the  administrator  with  a  devastavit. 

ERROR  to  the  district  court  of  York  county. 

This  was  an  action  of  debt  upon  an  administration  bond  given  by 
the  defendant,  John  Evans,  esquire,  upon  taking  out  letters  of  ad- 
ministration on  the  estate  of  F.  M.  Wadsworth,  esquire,  deceased. 
The  suit  was  brought  on  the  3d  of  November  1831  ;  and  the  breach 
of  the  condition  of  the  bond  alleged  by  the  plaintiff  was,  the  non- 
payment of  a  debt  owing  by  the  deceased,  F.  M.  Wadsworth,  es- 
quire, to  Thomas  Relly,  esquire. 

The  plaintiff,  to  support  the  issue  on  his  part,  gave  in  evidence 
the  record  of  a  suit,  No.  29,  May  term  1830,  Relly  v.  Evans,  Mmin- 
istrator  of  Wadsworth  ;  report  of  arbitration  thereon  for  plaintiff  for 
100  dollars;  appeal  by  plaintiff;  21  October  1831,  case  stated,  and 
judgment  for  defendant ;  writ  of  error  by  plaintiff,  and,  6  June  1832, 
judgment  reversed,  and  judgment  for  plaintiff  for  150  dollars.  Also 
the  administration  account  of  Evans,  administrator  of  Wadsworth, 
settled  3  March  1831,  showing  a  balance  of  3675  dollars  and  41  cents 
in  the  hands  of  accountant. 

The  defendant  then  proved  that  he  was  advised  by  counsel  to 
make  defence  in  the  case  of  Relly  v.  Evans,  Jldministrator  of  Wads- 
worth ;  that  it  was  litigated  before  arbitrators  in  the  district  and 
supreme  court  while  the  present  suit  was  pending.  To  this  evi- 
dence the  plaintiffdemurred,  and  the  defendant  joined  in  thedemurrer, 
which  gave  rise  to  the  question,  whether  the  plaintiff  was  en  titled  to 
recover  upon  the  evidence  given  in  this  suit.  The  district  court  was 
of  opinion,  that  the  plaintiff  was  not  entitled  to  recover ;  and  gave 
judgment  for  the  defendant,  which  was  the  subject  of  the  assignment 
of  error  in  this  suit. 

Durkee,  for  plaintiff  in  error,  cited,  Gord.  Dec.  293  ;  1  Salk.  316. 

Hambly  and  Gardner,  contra,  cited,  4  Johns.  Cha.  Rep.  628 ;  5 
Binn.  140;  13  Johns.  Rep.  440;  5  Dane  261  ;  16  Mass.  524;  1 
Munf.  31  ;  Halstead  195 ;  9  Serg.  $  Rawle  67 ;  13  Serg.  fy  Rawle 
238  ;  1  Johns.  Rep.  311  ;  8  Mass.  488. 

The  opinion  of  the  Court  was  delivered  by 

GIBSON,  C.  J. — The  condition  alleged  to  have  been  broken,  is  the 


438  SUPREME  COURT  [Lancaster, 

[Commonwealth  v.  Evans.] 

second  in  the  series  as  prescribed  by  the  legislature,  to  wit,  that  the 
administrator  will  well  and  truly  administer  according  to  law  the 
goods,  chattels  and  credits  of  the  deceased,  which  shall  come  to  his 
hands  ;  and  we  are  called  upon  to  give  these  words  an  original  judi- 
cial construction.  It  was  indeed  said  in  Yard  v.  Lea's  Administrators, 
3  Yeates  345,  that  the  bond  is  a  security  for  creditors  as  well  as  the 
next  of  kin  ;  but  without  intimating  the  nature  of  this  particular  con- 
dition, or  of  its  breach.  The  construction  seems  to  have  been  differ- 
ent in  England,  where  it  was  at  one  time  held,  that  the  clause  in 
question  extends  but  to  the  bringing  in  of  an  account,  and  not  to  the 
payment  of  debts ;  consequently,  that  a  creditor  may  not  have  the 
bond  assigned  to  him,  and  allege  non-payment  of  his  debt,  or  a  de- 
vastavit as  a  breach  of  it.  Archbishop  of  Canterbury  v.  Wills,  1  Salk. 
315.  And  in  Wallis  v.  Ripon,Amb.  183,  it  was  held  by  Lord  Hard- 
wicke,  that  none  but  the  next  of  kin  can  sue  on  an  administration 
bond  given  pursuant  to  the  22d  and  23d  Car.  2,  from  which  our  stat- 
ute is  taken  ;  though  it  was  admitted  to  be  otherwise  in  respect  to 
the  bond  given  by  an  administrator  pendente  lite.  These  cases,  how- 
ever, seem  to  have  been  overruled  in  the  Archbishop  of  Canterbury  v. 
House,  Cowp.  141,  where  it  was  determined,  that  an  action  may  be 
maintained  by  a  creditor  as  well  as  the  next  of  kin.  How  the  breach 
of  the  condition  was  assigned,  does  not  distinctly  appear ;  but  the 
nature  of  it  may  be  conjectured  from  the  remark  of  Lord  Mansfield, 
that  the  administrator  had  attempted  to  defeat  the  creditors  by  "  all 
sorts  of  chicane,  delay  and  false  pleading" — matters  that  constitute 
a  clear  devastavit.  In  Pennsylvania,  the  precise  meaning  of  the 
clause  in  question  has  not  been  judicially  determined,  and  it  is  now 
to  be  fixed  by  a  recurrence  to  general  rules  of  construction. 

It  is  a  cardinal  principle  that  contracts  are  to  be  expounded  as  the 
parties  themselves  expounded  them  ;  and  the  meaning  of  the  parlies 
is  presumed  to  be  the  meaning  assigned  to  the  same  sort  of  contracts 
by  the  rest  of  the  world.  Where  a  particular  interpretation  has  been 
universal,  it  ought  to  govern,  though  it  be  irreconcilable  to  the 
legal  effect  of  the  letter  ;  as  in  the  case  of  a  policy  of  insurance  or  a 
mortgage.  What  then  is  the  effect  universally  ascribed  to  this  con- 
dition by  the  profession  and  the  people  1  No  surety  in  an  administra- 
tion bond  ever  agreed  to  contract  an  absolute  instead  of  a  contingent 
liability,  or  supposed  that  he  subjected  himself  to  immediate  recourse 
as  a  principal  debtor.  That  this  assertion  is  borne  out  by  the  popu- 
lar and  professional  understanding,  will  not  be  disputed  by  those  who 
are  familiar  with  the  business  of  the  register's  office ;  indeed  its 
truth  is  proved  by  the  very  fact,  that  in  no  instance  but  the  present 
has  there  been  an  attempt  to  recover  on  proof  of  any  thing  less  than 
a  devastavit.  And  this  understanding  was  the  understanding  of  the 
legislature,  who  evidently  designed  to  do  no  more  than  enlarge  the  field 
of  personal  recourse,  by  adding  the  responsibility  of  a  surety  to  the 
existing  responsibility  of  the  administrator  ;  without  changing  the 
quality  or  condition  of  it  at  the  common  law,  which  turns  the  contin- 


May  1833.]  OF  PENNSYLVANIA.  439 

[Commonwealth  v.  Evans.] 

gent  liability  of  an  administrator,  as  well  as  of  an  executor,  into  an 
absolute  one,  only  as  a  penalty  for  a  devastavit.  Why  then  should  a 
surety  be  held  to  harder  terms  than  the  common  law  had  imposed 
on  his  principal,  whose  body  or  estate  could  not  be  subjected  to  satis- 
faction before  it  were  judicially  ascertained  that  the  assets  were  no 
longer  to  be  reached  by  an  execution  1  That  such  was  not  the  ob- 
ject of  the  legislature,  is  manifest  from  the  provisions  in  respect  to 
the  additional  bond  exacted  in  certain  cases  of  delinquency  by  the 
act  of  1797  ;  an  action  on  which  is  required  to  be  preceded  by  a  re- 
turn of  nulla  bona  on  an  execution  against  the  executor  or  adminis- 
trator in  his  representative  character.  Not  only  therefore  does  the 
object  and  reason  of  the  statute  define  the  meaning  of  the  particular 
clause,  but  the  limit  assigned  to  the  contract  of  the  surety  in  a  par- 
allel case  equally  indicates  the  legislative  intent ;  and  with  the 
principle  extracted  from  these  sources,  the  decisions  on  the  subject 
in  our  sister  states,  are  entirely  consistent.  In  Roboins  v.  Haywood, 
16  Mass.  127,  it  was  held,  that  a  creditor  whose  debt  has  been  but 
barely  ascertained  by  a  judgment,  may  be  permitted  to  sue  the  ad- 
ministration bond  ;  but  the  contest  had  respect  rather  to  the  disclo- 
sure of  such  an  interest  in  the  assets  as  entitled  the  plaintiff  to  inter- 
meddle, than  to  what  constituted  a  breach  of  the  bond  :  besides,  the 
conditions  prescribed  by  the  statute  of  Massachusetts  seem  to  be 
different  from  ours.  In  the  People  v.  Dunlap,  13  Johns.  440,  where 
the  words  of  the  condition  were  the  same  as  they  are  here,  the  statute 
of  New  York  also  having  been  taken  from  (he  22d  and  23d  Car.  2, 
there  had  been  a  previous  execution  and  return  of  nulla  bona.  And 
in  Gordon's  Administrators  v.  The  Justices  of  Frederick,  I  Munf.  1,  as 
well  as  in  several  other  cases  in  Virginia,  it  was  determined  that  no 
action  could  be  maintained  on  an  administration  bond  for  a  breach  of 
this  condition,  without  a  previous  suit  fixing  the  administrator  with 
a  devastavit.  What  then  is  the  evidence  of  a  breach  here  1  The 
plaintiff  showed  the  record  of  an  action  by  a  creditor  against  the 
administrator,  which,  at  the  inception  of  the  present  suit,  had  been 
decided  by  the  district  court  in  favour  of  the  administrator,  and  was 
depending  in  this  court  on  a  writ  of  error  ;  and  he  showed  no  more. 
Could  it,  under  these  circumstances,  be  a  devastavit,  or  even  an  in- 
delicacy to  withhold  payment  till  the  right  were  determined  by  the 
court  of  the  last  resort  *?  Assuredly  the  situation  of  the  administra- 
tor called  for  circumspection,  and  the  law  is  not  so  unreasonable 
as  to  require  him  to  act  at  his  peril,  and  with  a  promptness  that  would 
be  precipitation  in  any  other  transaction.  The  evidence,  therefore, 
failed  to  show  a  breach  of  the  condition,  and  the  demurrer  was 
properly  sustained. 
Judgment  affirmed. 


440  SUPREME  COURT  [Lancaster, 


Marshall  against  Hoff. 

H.,  executor  of  B.,  sold  the  real  estate  of  his  testator  and  took  bonds  for  the  pur- 
chase money,  which  remained  in  his  hands  until  he  died  intestate  and  insolvent. 
Held,  that  the  estate  of  the  testator  which  came  to  the  hands  of  the  administrator  of 
the  executor,  should  be  appropriated  by  him  for  the  benefit  of  the  estate  of  the  tes- 
tator, and  not  to  the  creditors  of  the  insolvent  executor. 

APPEAL  from  the  decree  of  the  orphan's  court  of  Berks  county, 
making  distribution  of  the  money  in  the  hands  of  Jacob  Hoff  and 
Catherine  Hoff,  administrators  of  John  Hoff  deceased. 

Jacob  Bright  died  seised  of  real  estate,  having  made  his  will,  by 
which  he  authorised  his  executor,  John  Hoff,  to  sell  his  said  estate 
for  certain  purposes  therein  directed.  The  estate  was  sold,  and 
John  Hoff  the  executor  took  bonds  and  mortgage  for  the  payment  of 
part  of  the  purchase  money,  and  subsequently  settled  an  account, 
charging  himself  with  the  said  purchase  money,  by  which  there  was 
found  to  be  a  balance  in  his  hands  of  13,195  dollars.  John  Hoff 
placed  these  bonds  and  mortgage  in  the  hands  of  Marks  J.  Biddle, 
Esq.  for  collection,  and  died.  Letters  of  administration  on  his  estate 
issued  to  Jacob  and  Catherine  Hoff,  who  received  from  Marks  J.  Bid- 
die,  Esq.,  their  attorney,  1750  dollars  of  the  money  which  he  had 
collected  on  the  said  bonds  and  mortgage.  These  administrators 
settled  an  account  of  their  administration  of  the  estate  of  John  Hoff 
deceased,  in  which  they  charged  themselves  witli  the  money  thus 
received.  This  account  was  referred  by  the  orphan's  court  to  audi- 
tors, to  settle  the  same  and  make  distribution  among  the  creditors, 
who  made  a  report  giving  a  preference  to  the  specialty  creditors  of 
John  Hoff  deceased,  over  the  administrator  de  bonis  non  with  the 
will  annexed  of  Jacob  Bright  deceased,  who  claimed  for  the  benefit 
of  the  estate  he  represented  all  the  assets  which  belonged  to  it. 
This  report  was  confirmed  by  the  orphan's  court,  upon  exceptions 
filed  to  it,  which  were  in  substance,  that  the  court  erred  in  not  de- 
creeing to  the  estate  of  Jacob  Bright  deceased  the  money  which  was 
collected  by  Marks  J.  Biddle,  Esq.  and  paid  over  to  the  administra- 
tors of  John  Hoff  deceased. 

Smith,  for  appellant,  cited,  2  Serg.  fy  Rawle  521;  15  Serg,  fy 
Rawle  145 ;  2  Rawle  121 ;  Jlshm.  Rep.  319. 

Biddle,  contra,  cited,  6  Serg.  fy  Rawle  462  ;  7  Serg.  fy  Rawle  483  ; 
11  Vim.  Jib.  430,  pi  16  ;  11  Serg.  fy  Rawle  377,  385. 

The  opinion  of  the  Court  was  delivered  by 

GIBSON,  C.  J. — The  administrators  of  John  Hoff  can  administer 


May  1833.]  OF  PENNSYLVANIA.  441 

[Marshall  v.  Hoff.] 

the  funds  in  their  hands  derived  from  the  estate  of  Jacob  Bright  in 
no  way  more  advantageously  to  Hoff's  creditors  than  he  himself 
could  do  were  he  alive;  and  the  question  is,  what  would  be  their 
recourse  against  him  in  a  court  of  equity,  to  whose  jurisdiction 
the  subject  belongs?  It  is  plain  that  he  could  not  make  the  assets 
his  own,  to  defeat  the  purposes  of  the  will,  by  charging  the  value  in 
his  account :  a  chancellor  would,  notwithstanding,  lay  hold  on  the 
funds  in  the  hands  of  the  insolvent  executor.  Even  take  it  that  he 
had  already  paid  them  away  to  his  creditors  with  a  knowledge  on 
their  part  of  his  insolvency  and  consequent  misapplication  of  the  fund, 
nothing  is  clearer  than  that  as  parties  to  the  devastavit,  a  court  of 
equity  would  compel  them  to  refund.  This  principle  is  amply  estab- 
lished by  Burting  v.  Stonard  and  Ewer  v.  Corbel,  2  P.  Wms  148, 
149;  Nugent  v.  Gifford,  1  Atk.  143;  Meade  v.  Lord  Orrery,  1  Atk. 
235;  Jacomb  v.  Harwood,  2  Ves.  265;  Crane  v.  Drake,  2  Fern.  616; 
and  Tanner  v.  Me,  2  Fern.  469.  And  the  consequence  is  the  same 
when  the  assets  have  been  turned  into  money,  provided  it  has  been 
received  with  a  knowledge  of  all  the  circumstances ;  for  when  re- 
ceived mala  fide,  it  may  be  followed  as  readily  as  a  chattel.  Now 
the  case  here  is  certainly  no  stronger  for  the  creditors,  than  that  of 
payment  actually  made  with  a  knowledge  of  its  being  a  misapplica- 
tion of  the  fund.  The  creditors  of  John  Hoff,  the  executor,  claim  to 
be  satisfied  out  of  a  fund  which,  though  recoverable  at  law  only  by 
his  administrators,  notoriously  belongs  in  equity  to  the  estate  of  his 
testator ;  and  as  a  chancellor  would  take  particular  pains  to  disap- 
point them,  this  court,  sitting  as  a  court  of  equity,  can  do  no  less. 
It  is  therefore  ordered  that  the  account  be  re-stated,  so  as  to  exclude 
from  it  all  moneys  received  by  the  accountants  from  any  person  in- 
debted to  their  intestate,  as  the  executor  of  Jacob  Bright ;  and  that 
the  accountants  be  decreed  to  hold  those  moneys  in  trust  for  the 
persons  entitled  to  the  same  under  the  will  of  the  said  Jacob  Bright ; 
and  that  the  record  be  remitted  to  the  orphan's  court  to  have  this 
decree  carried  into  execution. 
Decree  accordingly. 


3F 


442  SUPREME  COURT  [Lancaster, 


Rohrer  against  Stehman. 

In  Pennsylvania,  it  is  not  necessary  to  the  validity  of  a  devise  that  the  will  should 
be  sealed  ;  nor  that  it  should  be  proved  by  subscribing  witnesses. 

A  memorandum,  taken  in  writing,  from  the  mouth  of  a  testator,  for  the  purpose  of 
drawing  from  it  a  formal  will,  and  read  over  to  him  and  approved,  may  be  proved  as 
a  will. 

ISSUE  of  devisavit  vel  non,  on  an  instrument  of  writing,  purporting 
to  be  the  last  will  and  testament  of  Tobias  Stehman  deceased.  John 
Hubley,  a  scrivener,  was  sent  for  to  write  the  will  of  Tobias  Stehman. 
He  took  down  in  writing  what  the  testator  dictated  to  be  his  will ; 
and  when  it  was  all  done  he  read  it  over  to  him,  and  it  was  approved. 
From  this  memorandum  a  formal  will  was  drawn  by  John  Hubley, 
and  executed  by  Tobias  Stehman  in  the  presence  of  witnesses,  -who 
subscribed  it  as  such ;  but  when  it  was  offered  for  probate,  a  caveat 
was  entered,  an  issue  joined,  Which  was  tried,  and  a  verdict  and 
judgment  rendered  against  the  will,  on  the  ground  that  it  had  not 
been  read  to  the  testator  previously  to  its  execution.  The  memo- 
randum taken  by  John  Hubley  was  then  offered  for  probate,  and  its 
validity  was  the  subject  of  this  issue. 

The  following  evidence  was  then  given. 

This  cause  being  at  issue  and  the  jury  sworn,  prout  the  record,  the 
plaintiff  to  maintain  the  issue  on  his  part,  produced  Frederick  Fehl 
as  a  witness,  who,  being  duly  sworn  according  to  law,  testified  as 
follows. 

"  I  have  been  present  in  the  year  1814,  when  the  notes  were  draw- 
ing by  Hubley — Nov.  1814,  14th  of  November  1814,  drawn  by  John 
Hubley.  I  had  orders  to  come  to  Tobias  Stehman,  the  13th,  to  come 
the  next  morning,  which  would  be  the  14th.  I  went  very  early  in 
the  morning.  I  knocked  at  the  chamber  door,  and  he,  Tobias  Stehman 
asked  me  to  come  in.  I  went  in ;  said  he,  You  come  very  early.  I  said 
I  had  word  to  come  very  early.  I  asked  him  what  was  the  reason  for  it. 
He  told  me  he  had  a  mind  to  make  another  will  to-day.  I  asked 
him  then  what  is  the  reason :  he  told  me  he  does  not  like  that  will, 
he  wanted  to  make  a  new  one.  I  said,  Mr  Stehman,  I  would  leave 
it  by  the  old  will ;  well,  he  again  asked  me  if  I  would  not  draw  the 
minutes  in  German.  I  said  first  and  foremost,  I  cannot  write  a  will ; 
then  he  asked  me  to  write  the  minutes  in  German  ;  says  he,  Hubley 
will  be  here  about  two  o'clock,  and  he  had  to  pick  the  notes  and  put 
them  in  English.  Well,  about  that  time  the  house  was  full  of  peo- 
ple, his  own,  and  comers  and  goers,  about  breakfast  time.  Well, 
then  he  called  for  his  wife  to  come  into  the  room  where  he  lay.  She 
came  in  ;  then  he  said  to  her,  to  go  into  the  room  and  tell  the  people 


May  1833.]  OP  PENNSYLVANIA.  443 

[Rohrer  v.  Stehman.] 

to  go  out  of  the  house  and  lock  the  door.  Well,  then  she  done  so ; 
she  returned  into  the  chamber  room,  and  said  they  were  all  out,  and 
locked  the  door.  Well,  then  said  he,  Mammy,  now  take  a  sheet  of 
paper  and  ink,  and  a  feather,  and  set  alongside  a  little  table,  and  set 
it  aside  the  bed.  Well,  says  he,  Frederick,  take  a  chair  and  set  down, 
and  mammy,  said  he,  you  take  a  chair  and  set  alongside  the  bed. 
Well,  then  I  asked  him  what  I  should  set  down  first.  Well,  says  he, 
I  should  set  down  one  hundred  acres  in  the  Long  lane,  which  I  bought 
of  Darnel  Brenneman.  When  I  had  set  down  that,  then  he  said,  Have 
you  set  down  that  1  I  said  I  had.  Well,  then  says  he,  I  think  there 
are  thirty-five  acres  of  woodland  about  a  mile  off  the  one  hundred 
acres.  When  I  had  set  down,  I  asked  him  what  wood ;  he  said,  I 
bought  fifty-two  acres  of  Samuel  Simpson  of  Martick  township ;  I 
should  set  down  the  fifth  part  of  twenty-five  acres.  When  I  had 
set  down  that,  he  said,  That  is  all  the  land  my  grandson  shall  have. 
Next,  he  was  saying  he  had  two  hundred  acres  lying  on  the  west 
side  of  the  road  leading  from  Millerstown  to  his  mill,  and  from  thence 
to  Safe  Harbour  road.  He  meant  to  make  four  lots  of  the  two  hun- 
dred acres.  Well,  he  said,  there  is  a  sawmill  on  one  of  the  lots  ; 
that  same  lot  he  thought  Betsey,  his  daughter,  should  have ;  that  was 
the  east  lot ;  and  the  next  lot,  north-west,  towards  the  mill,  should 
be  Kitty's.  And  for  the  other  two  lots  adjoining  lands  of  Jacob  Fehl, 
there  were  two  girls  he  had,  Veronica  and  Peggy,  they  should  cast 
lots  for  them.  And  the  court  should  value  these — four  or  five  men  to 
value  the  lots — get  it  appraised.  The  highest  lots  they  should  make 
up,  so  that  they  should  come  equally  in  the  money  way  ;  they  should 
come  out  equal.  Next,  he  was  saying,  he  allowed  there  were  three 
hundred  acres  on  the  east  side  of  Millerstown  road,  where  he  resided. 
He  allowed  two  hundred  acres  that  his  son  Tobias  should  have,  and 
the  half  of  the  house  on  the  east  side,  and  have  to  give  out  2000 
pounds  to  four  of  the  sisters,  and  should  have  the  whole  team  of 
horses.  I  think  there  were  four  horses,  with  the  gears,  wagon,  cloth 
and  hand-screw  :  he  should  have  the  apple  mill  and  windmill,  and 
blacksmith's  tools  ;  should  have  three  steers,  four  cows,  or  three  cows 
and  two  beds  and  bedsteads ;  however,  he  said  he  should  be  fur- 
nished off  with  every  thing  like  his  eldest  son.  Next,  was  the  ten 
acres.  I  should  set  down  ten  acres  adjoining  lands  of  Kitty's  lot, 
which  was  erected  on  the  ten  acres  a  two  story  dwelling  house  :  this 
was  lying  on  the  west  side  of  Millerstown  road,  leading  to  Safe  Har- 
bour, adjoining  Conestoga.  Then  he,  I  think  that  time  George 
Zeigler  came  there,  we  broke  up  and  set  it  on  aside ;  when  he  came, 
my  mother  had  been  very  sick,  about  a  mile  from  Stehman 's.  I  asked 
Stehman  if  I  could  not  go  to  see  my  mother ;  he  said,  Yes,  you  have 
time  enough  ;  for  Zeigler  and  he  had  something  to  talk  about  other 
things,  and  I  might  go.  I  went.  I  stayed  at  my  mother's  till  two 
o'clock,  and  then  went  to  Mr  Stehman's.  When  I  came  there  Mr 
Zeigler  had  been  there  yet.  They  wished  to  stay  longer  together. 
It  was  near  three  o'clock  before  Zeigler  started.  So  he  said,  now  I 


444  SUPREME  COURT  [Lancaster, 

[Rohror  v.  Stehman.] 

should  begin  at  the  will ;  Tobias  said  (his  I  should  set  down  :  ninety 
acres  on  the  east  side  of  Millerstown  road  ;  about  that  time  somebody 
knocked  at  the  door,  which  was  locked ;  Mrs  Stehman  went  and 
looked ;  it  was  John  Hubley ;  he  came  in  ;  as  soon  as  he  was  in, 
Hubley  said,  Have  you  done  any  thing  in  the  business  1  I  said,  Yes, 
we  had  done  a  little ;  and  I  took  it  to  him  and  told  him,  Here  is  the 
business  we  have  done.  He  took  it  in  his  hand  and  looked  over  it ; 
Hubley  did.  He  then  asked  for  a  loose  sheet  of  paper ;  Hubley  did  ; 
and  laid  the  notes  I  had  made,  down  ;  some  was  right  and  some  was 
not ;  and  he  made  it  in  better  style  in  English.  He  began  at  the 
place  were  I  finished,  about  the  mill.  So  he  asked  Stehman  what 
was  to  be  done  with  the  mill ;  ninety  acres  were  set  down  already. 
The  mill,  and  all  the  implements  belonging  to  it,  and  all  that 
was  in  it,  the  ninety  acres,  the  ten  acres,  and  the  mill,  and  the  dwell- 
ing house,  that  is  what  I  will  keep  till  I  die  ;  and  after  my  decease, 
or  if  I  should  die,  my  wife  should  have  it  as  long  as  she  lives  ;  if  she 
should  die,  his  son  Tobias  should  have  all  this  if  he  gets  boys ;  and 
if  he  don't  get  no  boys,  his  eldest  son's  son  should  have  it — the  mill, 
one  hundred  acres  and  dwelling  house.  If  that  boy,  Tobias,  should 
die  before  he  was  twenty-one,  his  brother,  Christy,  was  to  have  it ; 
and  if  Christy  should  die  under  age,  then  John  should  have  it ;  and 
if  John  should  die  under  age,  Jacob  should  have  it:  and  if  they 
should  all  die  under  age,  the  mill  and  one  hundred  acres  should  be 
sold,  and  the  money  should  be  divided  among  his  own  children. 
That  was  the  last ;  then  it  was  read  by  Hubley — the  minutes ;  when 
it  was  reading,  his  wife  was  by  ;  says  she,  There  is  something  forgot 
about  the  mill — it  was  not  valued;  she  was  saying  about  2000 
pounds  ;  he  did  not  give  her  an  answer  on  that ;  so  he  was  consid- 
ering. He  said,  I  don't  know  how  to  do  about  that.  Then  I  was 
saying  to  him,  I  heard  Zeigler  once  saying  Christy  Rohrer  would 
willingly  give  5000  pounds  for  the  mill,  and  fifty  acres,  and  the 
dwelling  house  ;  then  he  began  to  laugh  a  little — to  smile  ;  then  we 
were  talking  how  the  money  would  be  at  that  time ;  it  might  be 
very  scarce  ;  then  he  said  it  must  be  valued  whoever  gets  it ;  it  must 
be  valued  at  the  time  he  gets  it ;  then  Hubley  lined  it  in  the  notes, 
that  whoever  gets  it,  it  must  be  valued  to  ;  it  must  be  valued  by  men 
to  be  appointed  by  the  court.  Well,  it  was  read  over  again  by  Hub- 
ley — the  whole.  Well,  said  Stehman,  now  it  is  right ;  and  he  told 
Mr  Hubley  to  do  it  by  to-morrow  for  him,  according  to  law.  Hubley 
made  an  excuse,  said  he  could  not  to-morrow,  he  had  some  business 
on  the  turnpike.  Well,  Stehman  told  him  to  do  it  as  soon  as  possible. 
Hubley  promised  he  would.  Then  Hubley  asked  him  who  should  be 
the  executors  ;  he  fixed  out  his  right  hand,  and  pointed  with  his  fin- 
ger against  me  ;  he  said,  Frederick  Fehl  should  be  one,  and  his  son, 
Tobias,  second,  and  Jaco6  Fehl  the  third  ;  so  it  was  dark — almost 
dark.  He  called  the  wife  to  get  a  little  water  and  wine  ;  we  refused  ; 
did  not  drink  any,  saying  there  was  no  need.  We  bid  good  night  to 


May  1833.]  OF  PENNSYLVANIA.  445 

[Rohrer  v.  Stehtnan.] 

him,  shook  hands  and  went  off.     Mr  Hubley  and  I  went  away  to- 
gether. 

"  Stehman  lived  about  a  mile  beyond  Millerstown.  He  was  at  that 
time  in  good  health.  He  thought  himself  to  live  at  the  mill.  He 
was  at  that  time  confined  to  his  bed  by  a  sort  of  a  fever — no  pain. 

"  As  to  memory  and  understanding,  I  could  see  no  odds,  like  as 
in  the  times  when  he  was  well  and  hearty. 

"  Mr  Hubley  read  the  minutes  over  twice  ;  he  read  it  word  for  word 
like  ;  he  asked  him  sometimes,  when  it  was  a  little  queery — he 
asked  him  if  he  understood  that,  and  he  said  Yes.  I  mean  by  queery 
some  words  which  Mr  Hubley  thought  he  could  not  understand ;  he 
explained  it  to  him,  and  he  said  he  was  satisfied. 

"  The  last  time  he  read  it  he  explained  some  words  he  did  not  the 
first  time  ;  he  said  it  was  all  right  after  it  was  read  the  second  time. 
I  did  not  see  him  from  that  time  till  the  22d  of  November,  he  was 
then  pretty  weakly  ;  he  was  very  glad  to  see  me  ;  glad  I  came  to 
see  him  ;  he  was  well  in  his  memory  and  understanding.  He  did 
not  say  any  thing  about  these  minutes.  [Shown  the  notes.]  I 
think  this  is  the  very  paper  Hubley  wrote  ;  I  did  not  see  it  since  that 
day  ;  this  is  the  paper  he  wrote  in  my  presence  and  read  to  the  old 
man,  and  when  it  was  read,  he  said  it  was  all  right ;  I  think  it  is 
the  paper  to  the  best  of  my  knowledge." 

Cross-examined.  "  I  and  he  married  sisters  ;  I  cannot  read  English 
writing  well ;  I  did  not  read  the  minutes  that  John  Hubley  wrote  ;  I 
never  had  them  in  my  hand  before  to-day  ;  I  know  it  by  the  letters 
of  his  handwriting  ;  I  am  not  acquainted  with  the  handwriting  of 
Mr  Hubley,  but  think  this  is  the  very  writings  he  drew  that  day." 
Asked,  why  1  "I  think  so  because  I  saw  it  that  day  when  Hubley 
read  it ;  that  is  all  the  reason  I  have  for  thinking  this  is  the  paper ; 
no  mark  on  the  paper  by  which  I  know  it  to  be  the  paper  ;  did  not 
take  notice  at  the  time  of  any  marks.  John  Hubley  put  them  in  his 
pocket  and  took  them  away  that  day ;  from  that  time  to  this  I  have 
not  seen  them  ;  I  cannot  read  this  handwriting  at  all ;  Mr  Stehman 
agreed  to  them  when  read  a  second  time.  The  substance  that  was 
communicated  to  Mr  Hubley  was  the  same  with  what  was  read, 
except  the  style  was  altered.  The  substance  communicated  to  me, 
Hubley  picked  oul  the  best  of  it,  and  asked  Stehman  if  it  was  right, 
and  he  said  Yes.  Hubley  spoke  to  him  in  the  German,  and  he  spoke 
German  to  Hubley  and  I  also  ;  we  all  spoke  German  ;  Mr  Hubley 
read  it  in  English  to  Mr  Stehman  the  first  and  second  time  ;  he  ex- 
plained the  queery  words  in  German  ;  Mr  Stehman  understood  Eng- 
lish, but  could  not  read  or  write  English  ;  the  last  time  he  read  it 
slowly  and  carefully." 

"  Mr  Stehman  died  25th  or  26th  of  November  1814.  Tobias,  his 
eldest  son,  was  then  above  age;  twenty-three  or  twenty-four;  al- 
ways lived  with  his  father ;  he  was  very  industrious  ;  his  father  had 
a  great  liking  to  him." 


44G  SUPREME  COURT  [Lancaster, 

[Rohrer  v.  Stehman.] 

The  counsel  for  the  defendants  admit  that  the  notes  now  produced 
are  in  the  handwriting  of  the  late  John  Hubley,  Esq. 

The  plaintiffs  then  offered  Jacob  Fehl  as  a  witness  ;  who  being 
sworn  according  to  law,  testified  as  follows. 

"  I  went  to  the  doctor's  always  when  he  (Mr  Stehman)  was  sick. 
He  was  eleven  or  twelve  weeks  sick ;  he  sent  his  daughter  for  me ; 
I  Avent  there  between  nine  and  ten  o'clock ;  his  wife  gave  me  a  wink 
that  I  should  come  to  him — into  the  room  to  him  ;  I  asked  him  how 
he  was ;  said  he  was  not  quite  well,  but  a  great  deal  better  than  he 
had  been.  He  said  he  had  made  a  will  but  it  never  should  stand  ; 
that  was  the  first  will  Gloninger  had  made  ;  he  said  I  should  go  to 
John  Hubley,  he  should  come  out  and  draw  me  another  will.  I  said, 
Tobias,  I  do  not  like  to  do  such  business  ;  he  said  I  should  go,  and  be 
afraid  of  nobody  ;  I  took  his  horse  and  went  to  Mr  Hubley's  office  ; 
he  was  sitting  there  ;  I  told  him  ;  he  said  he  could  not  go  to-day,  he, 
would  try  to  get  out  the  day  after  to-morrow ;  I  must  try  to  get 
somebody  to  do  it  in  German,  and  that  I  must  tell  Tobias ;  he  said 
he  could  write  English  or  German.  I  told  this  to  Mr  Stehman ;  Mr 
Stehman  called  in  Frederick  FehVs  son,  and  told  him  to  tell  his  father 
to  come  over  very  early  in  the  morning ;  I  was  with  Mr  Stehman  till 
twelve  o'clock  in  the  night ;  he  told  me  I  should  come  out  in  the 
morning  again  ;  Frederick  Fehl  would  be  there  early ;  I  went  home  ; 
when  I  came  out  Frederick  was  drawing  the  writing  in  German  ;  he 
was  in  bed,  and  his  wife  was  sitting  there ;  when  Frederick  heard 
somebody  was  coming,  he  took  the  papers  up  and  stopped ;  the  old 
man  said  I  knew  what  they  were  doing ;  I  went  in ;  he  had  done 
with  the  grandchildren ;  I  said  he  might  make  his  will  as  he  liked. 
Frederick  read  it  to  me ;  then  he  said  I  will  begin  about  the  four 
hundred  acres  which  the  four  daughters  should  have ;.  then  he  was 
considering  a  little  whether  Betsey  or  Kitty  should  have  the  sawmill 
and  the  fifty  acres.  He  said  Betsey  should  have  it ;  he  said  Kitty 
should  have  fifty  acres  of  the  land  going  down  to  the  mill ;  as  to 
Fanny  and  Peggy  they  were  single,  and  if  they  married  they  should 
draw  lots  for  the  choice  of  the  other  two ;  then  if  they  should  not 
agree  they  should  get  five  men  to  appraise  it,  if  one  should  be  of  more 
value  than  the  other;  that  they  should  have  an  equal  share  in  money ; 
then  he  was  done  with  that,  and  he  said  he  would  go  to  the  house 
where  he  lived ;  two  hundred  acres  of  land  ;  he  said  Tobias  should 
have  them  two  hundred  acres  more  or  less ;  he  should  give  three 
thousand  pounds  out  to  the  girls  ;  then  Frederick  stood  up  and  said 
Hoi !  Hoi !  and  he  then  said  two  thousand  pounds ;  he  said  that 
should  be  among  my  four  daughters,  Betsey  and  Kitty  and  Fanny 
and  Peggy ;  half  of  the  house  he  lived  in  he  made  to  his  wife,  and  I 
don't  know  what  all,  and  horse  and  bridle;  Tobias  should  feed  it  and 
haul  the  fire  wood  and  make  it  fine  for  her,  six  barrels  of  cider,  and 
she  should  go  into  the  orchard  and  pick  as  many  apples  as  she 
pleased,  and  the  gardens  and  one  thing  and  another,  I  cannot  just 
name  it  all ;  he  said  if  she  cannot  live  with  her  son  Tobias}  she  might 


May  1833.]  OF  PENNSYLVANIA.  447 

[Rohrer  v.  Stehman.] 

rent  it  away  if  he  did  not  use  her  like  another ;  that  was  done ;  then 
he  began  about  the  ninety  acres,  and  the  mill,  and  the  ten  acres,  and 
the  new  house  ;  then  as  he  was  speaking  about  it  who  should  come 
riding  but  George  Zeigler ;  he  was  speaking  then  and  he  said,  This 
mill  and  the  ten  acres,  and  the  ninety  acres  belongs  to  my  wife,  and 
she  can  move  to  the  mill  if  I  don't  come  down  or  rent  it  out — she 
should  do  what  she  pleased  with  it — she  was  to  have  it  as  long  as 
she  was  alive.  If  her  son-in-law,  Rohrer,  used  her  well,  she  could 
stay  there  too  if  she  choose — a  piece  of  it;  if  Tobias  gets  a  boy  before 
his  mother  died  he  should  have  the  mill ;  if  he  should  not  get  a  boy 
it  should  fall  to  John  Stehman  ;  and  if  that  one  should  die  under  age 
it  should  fall  to  Christy;  if  he  should  die  under  age  it  should  go  to 
Johnny;  if  that  one  died  under  age  it  should  go  to  Jacob;  then  it 
should  be  appraised  by  five  men  to  be  appointed.  If  one  gets  hold 
of  the  mill,  they  should  have  five  men  appointed  by  the  court  to 
appraise  the  mill,  the  ninety  acres  and  the  ten  acres  and  the  new 
dwelling  house,  and  that  should  be  made  into  six  shares,  and  every 
one  was  to>  have  a  share.  His  debts  should  be  paid,  and  the  over- 
plus to  be  divided  among  his  own  children  and  grandchildren  in 
equal  shares  in  money ;  the  two  single  daughters  were  to  be  furnished 
like  Dietrich's  wife  and  Rohrer's  wife,  each  500  dollars,  to  be  taken 
first  out  of  the  personal  property.  Then  Zeigler  was  coming,  and 
he  said  he  would  quit  it  a  little,  and  I  went  away,  my  mother  was 
sick.  If  Tobias  was  to  have  a  son  at  any  time  during  his  life  Tobias 
was  to  have  it,  and  it  was  to  be  appraised  by  men ;  the  court  was  to 
appoint  the  men  if  they  could  not  agree.  The  day  after  Hubley  was 
there  I  went  there.  He  said  he  was  glad  Hubley  was  there,  he  was 
drawing  the  will  in  town  ;  took  the  papers  there.  He  said  Hubley 
would  be  out  again,  but  I  should  ride  in  and  tell  Mr  Hubley  to  make 
his  will  ready,  what  he  was  writing,  to  make  haste  and  make  this 
thing  ready,  these  papers  that  he  took  off  ready ;  then  he  said  I 
should  tell  Hubley  to  put  the  grain  in  it  if  he  forgot  it ;  Tobias  was 
to  have  it ;  I  should  tell  Hubley  so  ;  I  told  Hubley  ;  Hubley  said  he 
was  very  glad  I  had  come,  he  said  he  had  it  in  his  minutes  that  the 
girls  should  have  500  pounds  every  one  out  of  the  two  hundred  acres  ; 
then  I  rode  home  and  told  Tobias  Hubley  did  not  know  rightly  about ; 
he  said,  The  dumb  old  man,  don't  he  know  that  the  girls  were  to  have 
500  pounds  each  out  of  the  two  hundred  acres.  Then  I  went  into 
Hubley  and  he  brought  me  the  paper,  such  a  paper  as  this.  He 
looked  into  it  and  said,  Yes,  the  girls  are  to  have  500  pounds 
a-piece.  Mr  Stehman  told  me  to  tell  Hubley  if  he  was  done  he 
should  bring  the  will  out ;  he  gave  it  to  me  and  I  took  it  out ;  he 
said  in  the  morning  he  would  be  out  to  read  it  to  him  if  he  was  well 
enough,  and  I  should  tell  Stehman  so ;  I  gave  it  to  Stehman ;  he  said 
I  should  call  all  the  children  in  ;  I  think  this  is  the  paper  I  gave  to 
him,  and  he  had  this  paper ;  all  were  there  but  Kitty,  and  he  said, 
This  is  now  my  last  will.  Henry  Rohrer  was  there,  and  he  sent  for 
Michael  Rathfon,  and  Henry  Gall  came  in  too ;  then  he  signed  it,  put 


448  SUPREME  COURT  [Lancaster, 

[Rohrer  v.  Stohtnan.] 

his  name  down,  and  said,  Thank  God  I  made  my  will ;  then  Michael 
Rathfon  and  Henry  Rohrer  and  Henry  Gall,  as  witnesses.  It  waa 
not  read  to  him — nobody  there  could  read  English.  He  thought  it 
was  all  right ;  two  weeks  afterwards  he  died.  Tobias  was  twenty- 
seven  or  twenty-eight  or  thirty  when  his  father  died  ;  he  lived  all 
along  with  his  father ;  was  an  industrious  man." 

Cross-examined.  "  He  did  not  give  me  a  paper  to  carry  to  Mr 
Hubley.  I  do  not  remember  it." 

The  plaintiff  then  produced  Henry  Gall  as  a  witness,  who,  being 
duly  sworn  according  to  law,  testified  as  follows  : 

"  I  lived  with  Mr  Tobias  Stehman  about  sixteen  years  ;  young 
Tobias  lived  with  him  all  the  time.  To  the  best  of  my  knowledge 
he  was  twenty-eight  or  twenty-nine  when  his  father  died.  His  son 
and  all  the  tenants  helped  to  put  up  the  mill ;  worked  at  it.  I  was 
there  when  the  old  man  signed  the  will  ;  it  was  not  read  to  him  ; 
nobody  could  read  it  without  the  son  could  ;  signed  by  him  and  by 
me  without  being  read  to  him.  Tobias  was  always  industrious, 
worked  on  steady  from  the  time  I  was  there.  [Shown  4  writing.] 
This  is  my  handwriting ;  Tobias  declared  this  to  be  his  will.  Rath- 
fon died  and  Rohrer  is  dead.  He  was  of  sound  mind  then.  This  is 
the  paper  that  was  not  read  to  them." 

The  following  deposition  of  John  Hubley  was  then  read. 

"  In  pursuance  of  the  hereto  annexed  rule  of  court,  personally 
appeared  before  me  Samuel  Carpenter,  one  of  the  aldermen  of  the  city 
of  Lancaster,  in  the  said  county  of  Lancaster,  John  Hubley,  Esq.  who 
being  duly  sworn  according  to  law,  deposeth  and  saith,  that  he  took 
the  notes  on  the  paper  hereto  attached,  marked  A,  and  that  those 
notes  were  taken  for  the  purpose  of  drawing  the  last  will  of  Tobias 
Stehman  by  them  ;  he  saith,  that  he  could  not  say  whether  they 
were  taken  in  the  said  Stehman's  last  sickness,  but  Stehman  did  not 
live  long  afterwards,  but  how  long  he  could  not  tell ;  but  that  the 
said  Stehman  when  the  notes  were  taken,  was  then  of  sound  mind, 
memory  and  understanding,  to  the  best  of  his  knowledge  and  belief ; 
and  that  he  corrected  the  said  notes  and  read  them  over  again  ;  he, 
Stehman,  gave  him,  deponent,  to  understand  that  he  was  satisfied 
with  the  notes.  That  those  notes  which  he  read  over  to  Stehman  as 
aforesaid,  meaning  these  notes  hereto  attached,  marked  A,  are  the 
same  notes,  and  that  he  believes  them  to  be  the  same  as  they  were 
then.  And  deponent  further  saith,  that  there  was  a  great  deal  of 
conversation  at  that  time,  and  that  deponent  supposed  that  he  would 
be  able  to  write  the  will  from  those  explanatory  observations  and  the 
minutes  taken  by  him,  but  that  the  deponent  does  not  now  recollect 
what  those  explanatory  observations  were  ;  that  those  explanatory 
observations  were  made  at  and  after  the  notes  were  read  to  Stehman 
the  second  time." 

Cross-examination.  "  At  the  time  of  taking  these  minutes  was  it  not 
understood,  both  by  you  and  the  testator,  that  they  were  not  to  be 
considered  as  his  will,  but  a  mere  me  mo  rand  inn  from  which  you 


May  1833.]  OF  PENNSYLVANIA.  449 

[Rohrer  v.  Stehman.] 

were  to  draw  an  instrument  of  writing,  afterwards  to  be  executed  by 
the  testator  as  his  will  ]" 

Answer.     "  It  was  so  understood." 

Question.  "  Had  not  Frederick  Fehl  taken  some  notes  in  German 
in  respect  to  the  will  of  Tobias  Stehman  before  you  came  to  Mr  Steh- 
mari's  ?"  Answer.  "  Yes,  Fehl  had  begun  when  I  came,  but  had  not 
proceeded  far,  but  I  had  nothing  to  do  with  the  notes  taken  by  Fehl. 
Mr  Stehman  sat  up  in  bed  and  took  a  snuff  occasionally.  I  did  not 
conceive  him  to  be  so  very  ill.  The  query  appearing  in  the  notes 
was  made  the  same  time  the  notes  were  drawn  to  the  best  of  my 
knowledge." 

Question.  "  If  the  query  had  been  added  at  the  same  time,  why 
was  it  put  down  at  all  7"  Answer.  "  The  query  was  merely  put  down 
to  know  how  the  2000  pounds  were  to  be  distributed,  that  they  were 
to  be  divided  between  four  daughters." 

Question.  "Are  you  positive  that  the  query  attached  to  the  notes 
was  put  down  at  the  time  of  taking  the  notes  7"  Answer.  "  I  am  not 
positive." 

Question.  "  Might  not  that  query  have  been  added  to  those  min- 
utes after  you  came  home  1"  Answer.  "  It  might,  but  I  think  not, 
because  I  had  bad  ink  at  Stehman's,  and  had  good  ink  at  home." 

Question.  "Did  you  not  inquire  of  Jacob  Fehl  whether  some  money 
should  not  be  paid  out  of  the  land  given  to  John's  children  1"  Answer. 
"Jacob  Fehl  came  to  Lancaster  after  the  minutes  had  been  taken,  and 
I  made  that  inquiry  of  Jacob  Fehl.  To  the  best  of  my  knowledge 
Jacob  Fehl  said  he  knew  nothing  about  it,  but  that  he  would  inquire 
of  Tobias  Stehman.  Jacob  Fehl  afterwards  came  in,  and  brought  a 
small  paper  which  I  did  not  understand,  which  was  mislaid  and  not 
since  found,  and  whether  that  was  the  answer  of  Stehman  he  could 
not  tell ;  Stehman's  name  was  not  to  it.  I  cannot  tell  when  the 
word  No,  in  the  query,  was  put  there.  I  cannot  tell  whether  the 
word  No,  was  put  to  the  query  after  the  inquiry  was  made  of  Fehl  or 
not.  That  the  minutes  were  so  dark  in  some  places  that  he  had  to 
run  his  pen  over  them  when  he  came  home  to  make  them  plainer. 
I  cannot  tell  what  the  meaning  of  the  cross  opposite  the  letter  B  is. 
I  cannot  tell  whether  that  part  with  the  cross  was  considered  as  part 
of  the  minutes  or  not.  I  afterwards  drew  an  instrument  of  writing, 
purporting  to  be  the  will  of  Tobias  Stehman,  and  sent  it  out  by  Jacob 
Fehl,  and  told  him  to  read  it  or  have  it  read  to  Mr  Stehman,  and  if 
the  instrument  was  not  right  he  should  just  let  me  know,  that  I  would 
come  out  and  make  it  right.  The  instrument  of  writing  purporting 
to  be  the  last  will  of  Mr  Stehman  was  drawn  from  the  said  minutes, 
and  the  explanatory  observations  made  at  the  time  of  taking  the 
minutes.  The  said  minutes  were  merely  intended  to  assist  my  re- 
collection. And  the  said  instrument  of  writing  was  drawn  from  my 
recollection  of  the  said  minutes.  My  memory  is  very  imperfect  at 
present,  but  at  the  time  of  drawing  the  will  my  memory  was  tolera- 
bly good.  I  was  then  an  old  man." 
SG 


450  SUPREME  COURT  [Lancaster, 

[Rohrer  v.  Stehman.] 

The  plaintiff  then  produced  Molton  C.  Rogers  as  a  witness,  who, 
being  duly  sworn  according  to  law,  testified  as  follows. 

[Shown  the  minutes.]  "I  attended  the  taking  the  deposition  of 
Mr  Hubley,  which  has  been  read  in  evidence.  There  was  a  paper 
produced,  but  whether  this  is  the  paper  I  will  not  undertake  to  swear. 
I  think  the  paper  which  was  produced  in  the  handwriting  of  Mr 
Hubley  ;  it  was  brought  there  for  the  purpose  of  being  proved  as  the 
last  will  and  testament  of  Tobias  Stehman.  I  don't  know  where  it 
was  brought  from,  nor  do  I  know  who  brought  it.  1  don't  recollect 
any  thing  about  it  being  said  to  be  brought  from  the  register's  office. 
[Opened  and  shown  letter  B.]  I  cross-examined  Mr  Hubley  at  that 
time.  [Asked  to  turn  to  the  part  where  B  is  referred  to.]  I  have  no 
recollection  of  any  reference  but  what  appears  here  in  Mr  Hubl&js 
deposition  ;  it  appears  from  this  that  I  cross-examined  him  ;  I  have 
no  doubt  that  I  cross-examined  Mr  Hubley,  and  put  this  question  to 
him ;  but  whether  the  instrument  of  writing  was  marked  B  by  Mr 
Carpenter,  or  how  the  B  came,  or  whether  it  was  put  upon  that  in- 
strument [the  minutes]  I  don't  know.  What  is  on  the  face  of  the 
deposition  was  taken  down  in  my  presence.  I  have  no  doubt  the 
deposition  was  taken  down  fairly  and  correctly  at  the  time.  I  have 
no  doubt  there  was  a  letter  B  on  the  instrument  of  writing  at  the 
time,  or  that  it  was  placed  there,  and  that  on  putting  that  question 
I  had  reference  to  it."  "  Have  you  any  doubt  but  that  the  B  placed  on 
the  minutes  is  the  B  referred  to  in  the  question  and  answer  ?"  An- 
swer. "  If  this  paper  was  the  paper  that  was  there,  I  have  no  doubt 
that  the  B  on  the  paper  is  the  one  referred  to  in  my  question,  but 
I  don't  know  that  this  is  the  paper.  I  believe  this  is  the  paper 
that  was  there,  I  mean  the  minutes.  My  only  reason  for  believing 
that  it  is  the  paper,  is  from  what  I  see  on  the  deposition  of  John 
Hubley,  and  from  supposing  that  Mr  Frazer  would  hardly  bring 
any  other  paper  to  be  proved.  I  never  knew  of  any  other  paper 
drawn  by  Mr  Hubley  as  the  minutes  of  the  will  of  Mr  Stehman  but 
that  paper.  I  don't  know  that  that  was  drawn  ;  never  knew  any  other 
exhibited  or  pretended  to  be  the  minutes  of  the  will  of  Tobias  Steh- 
man but  that  one." 

[Shown  letter  A.]  "  Have  you  any  doubt  that  that  letter  was  put 
on  the  deposition  at  the  time  of  the  examination  for  the  purpose  of 
marking  the  paper  of  which  Mr  Hubley  was  speaking  1"  Answer. 
"  I  doubt  it  very  much.  I  do  not  think  it  was.  I  have  no  recollec- 
tion of  the  paper  being  marked  with  the  letter  A,  or  any  other  letter. 
I  judge  of  it  merely  from  what  appears  upon  that  paper.  It  don't 
look  to  me  like  a  mode  of  authenticating  any  instrument.  I  don't 
know  whose  letter  it  is.  I  don't  know  whether  it  is  the  letter  of  Mr 
Hubley,  or  of  the  squire,  or  whose  writing  it  is.  Indeed,  I  am  not 
a  good  judge  of  handwriting.  It  don't  look  like  the  writing  of  the 
squire.  I  have  no  recollection  whatever  respecting  it.  I  don't  re- 
collect that  it  was  identified  in  any  way.  I  have  no  doubt  that  the 
deposition  and  letter  A  were  fairly  and  correctly  done,  but  whether 


May  1833.]  OF  PENNSYLVANIA.  451 

[Rohrerv.  Stehman.] 

Mr  Carpenter  put  the  letter  A  on  the  instrument  of  writing,  I  have 
no  recollection  whatever.  We  all  know  how  depositions  are  taken. 
Sometimes  the  reference  is  put  before,  and  sometimes  after.  Mr 
Carpenter  intended,  I  have  no  doubt,  to  put  the  letter  A,  but  whether 
he  did  or  not  I  don't  know.  If  it  had  been  there  before,  it  would 
have  been  identified  as  well  as  if  put  there  at  that  time." 

Question.  "  Are  these  the  same  minutes  which  were  used  by  Chris- 
tian Rohrer  on  the  trial  of  ejectment,  Stehman  v.  Rohrer  ?" 

The  plaintiff  again  produced  Frederick  Fehl,  who,  being  duly 
sworn,  deposed  as  follows. 

"  I  was  present  when  the  deposition  of  Mr  Hubley  was  taken.  I 
was  subpoenaed  by  Squire  Carpenter.  It  was  allowed  Mr  Rogers  had 
the  minutes.  These  were  there."  Is  this  the  paper  that  was  there  1 
"  I  was  not  so  near.  Mr  Rogers  had  the  papers  in  his  hands,  which 
it  is  allowed  were  the  minutes ;  I  cannot  tell  whether  this  was  the 
paper  or  not.  I  was  not  near  enough  to  be  able  to  tell.  I  cannot 
tell  where  the  paper  was  brought  from  ;  Rogers  brought  it ;  he  had 
it  in  his  hands  when  I  saw  it.  Mr  Hubley  spoke  of  this  paper,  or 
this  one  he  drew.  Mr  Rogers  examined  him.  I  think  I  was  there 
from  three  o'clock  till  dusk.  I  saw  no  paper  there  but  the  one. 
Rogers  wanted  to  examine  Mr  Hubley  before  he  was  qualified  ;  then 
Hubley  said  he  must  be  qualified  first.  It  was  such  a  paper  as  this. 
There  was  an  examination  by  Mr  Rogers,  why  it,  some  of  it,  was 
written  so  small ;  he  was  asked  why  there  were  so  many  flashes  in  it, 
so  many  blots  in  it ;  he  said  the  pen  was  so  dull ;  was  not  good." 

Cross-examined.  "  Never  saw  these  minutes  before  except  at  Steh- 
man's,  unless  at  Squire  Carpenter's.  I  cannot  tell  whether  the  paper 
I  saw  at  Squire  Carpenter's  was  the  same  I  saw  at  Stehman's,  but  by 
all  the  many  examinations  it  must  have  been  the  same  as  that  drawn 
at  Stehman's.  I  never  had  that  paper  in  my  hands  ;  I  never  read  it 
in  my  life  ;  I  could  not  read  it  if  I  were  to  try  ;  I  can  write  English 
in  common  ;  it  would  take  me  some  time  to  study  over  it ;  to  the 
best  of  my  knowledge  the  paper  I  saw  at  Carpenter's  was  the  same  I 
saw  at  Stehman's  ;  I  think  this  is  the  paper  I  had  yesterday  morning." 

The  plaintiff  then  produced  John  Bachman  as  a  witness,  who,  be- 
ing duly  affirmed  according  to  law,  deposed  as  follows. 

"  I  cannot  recollect ;  I  know  it  was  taken  out  of  the  office  fre- 
quently ;  but  don't  remember  that  it  was  taken  out  for  the  purpose 
of  examining  Mr  Hubley.  Don't  recollect  going  down  to  Squire  Car- 
penter's with  it ;  I  might  have  gone,  but  don't  recollect  it." 

The  counsel  for  the  plaintiff  then  and  there,  further  to  maintain 
the  issue  on  their  part,  offered  to  read  the  minutes  taken  by  John 
Hubley,  Esq.  on  the  14th  of  November  1814,  prout  the  same.  The 
counsel  of  the  defendants  objected  thereto  ;  and  the  court,  after  ar- 
gument, overruled  their  objection  and  admitted  the  said  minutes  to 
be  read  in  evidence  to  the  jury.  To  which  opinion  of  the  court  the 
counsel  for  the  defendants  excepted. 

These  minutes  were  then  read. 


452  SUPREME  COURT  [Lancaster, 

[Rohrer  v.  Stehman.] 

6)  2000  (333.  6.  8. 
IS & 

20  2000.  o.  o. 

18 
20 
18 

240, 

36. 

4. 

"  Tobias  Stehman,  Conestf.  Bequeaths  to  Tobias  Steman,  Chris- 
tian, John,  Jacob,  the  children  of  my  son  John,  his  plantation  and 
tract  of  land  which  he  bought  of  Dani  Breneman,  containing  about 
133.  acres,  to  hold  to  them  in  fee,  to  be  valued  by  5.  men  to  be  ap- 
pointed by  the  orphl'  court  at  the  valuation  whereof  if  it  can  not  be 

to  be  appr?. 

be  divided   fe—a    into  two  three  or  four  parts  A  by  r?>&*   5.  men 

after  death,  marriage  or  removal  from  the  premises  of  widow  subject  to  the  widow  (John)  dower 

t?  '. .  -l.vlj3J.4r,  tl.v.  C.  J.  the  whole  to  be  appraised  &  the  eldest 

therein 

sou  to  have  his  choice,  then  the  next  son  &  after  him  the  young- 

a 

est  with  A  55  part  of  the  28.  acres  wood  li 

to  Tobias  Steman  his  son 

"  Bequeaths  i4*e-A  his  mansion  house  &  the  place  thereto  be- 
ad]1!^ Jacob  Bare  &  John  Bare  &  others 

longing  A  cental  abol  200.  acres  more  or  less,  in  fee — also  5.  horses 
&  the  gears  to  them — two  wagons,  2.  plows,  2.  harrows,  3.  cows 
&  3.  stears  &  2.  heiffers,  6.  sheep — a  bed  and  bed  clothes  G.  olio^ 

for  straw 

and  the  blacksmith  tools — an  apple  mill — cutting  box,  wind  mill- 
wagon 

a  hand  screw  &  wagon  cloth  liberty  to  saw  his  wood  at  the  saw 
mill  as  much  he  wants  k»  keeping.  He  is  to  grant  a  water  right 
to  the  mill  as  far  as  it  runs  thro'  his  lands  help  to  repair  the  saw 
mill  &  race  thereto  in  proportion  as  he  shall  make  use  thereof — the 
right  to  the  saw  mill  to  be  during  his  life — likewise  25.  acres  of  the 
woodland  joiriirg  which  I  bought  of  Jam8  Simpson  in  Martick  town- 
ship.— and  values  the  same  to  him  at  .£2000. — to  be  paid  in  pay- 

per  years  out 

ments  of  .£300.  1  y^r  £333.  6.  8.  with  interest — among  the  four 
daughters. 

married  to  Henry  Dietrich 

married  to  Christian  Rohrer 

"  Bequeaths  to  his  4.  daughters,  Elizab:   Cath:    Fronica,    Mar- 

adjoin?.  Jacob  Fehl  &  Tobias  in  Conestogoe 

garetta,  200.  acres  of  land  more  or  less  A  to  be  equally  divided  in  my 
life  time,  or  by  5.  men  to  be  appointed  by  the  O.  Cl  with  £3  4.  fifth 
parts  of  the  28.  acres  woodland  whereof  the  above  25.  acres  are  a 
part. 

Maria 

"  To  A  the  widow  of  my  deceased  son  John  he  gives  the  possess- 
ion of  her  children's  part  daring  her  widowhood  &  thereout  she  is  to 
maintain  them  during  their  minority  or  so  long  as  they  live  with  her. 

A.  along  the  rd.  lead  R  to  Millers  Town  &  adj  8  the  lands  of  Tobias 

;<  Tho  H  Elizl  to  have  her  share  includl  the  saw  mill  A  — Cath- 


May  1833.]  OF  PENNSYLVANIA.  453 

;  [Rohrer  v.  Stehman.] 

arine  to  her  share  joining  big  road  leadl   & 


To  iv  i*-  to  the  mill  &  adjoining  the  lands  given  to  Tobias. 

stone 

"  To  the  widow  (CathJL)  of  the  testator  he  gives  the  new  A  dwell- 

&  10.  acres  of  land  left  side  of 

ing  house  A,  &  the  mill  with  90.  acres  of  li  along  the  A  road  I^J^g 
from  the  mill  to  the  long  lane  &  all  the  utensils  thereto  the  mill 
dam  &c.  during  her  life  —  and  also  2.  front  rooms  in  the  present 
dwel.|!L  house  one  above  &  one  below  on  the  left  side  —  room  in  the 

&  garret 

cellar  kitchen  wash  house  &  bake  house  A  as  much  as  she  wants, 

saddle  &  bridle 

a  riding  horse  A  3.  cows  6.  sheep  —  all  to  be  kept  by  Tobias—  during 

a  hind  fat  as  many 

he  life  time  —  A  quarter  of  A  beef  —  2.  fat  hogs,  apples  as  r...:^  she 
wants  6.  barrels  of  cider,  fire  wood  delivered  to  the  house  as  much 

in 

as  she  has  use  for,  ready  split  for  use  in  the  stove  •&  fire  place  —  10. 
bushels  of  potatoes  —  25lb:  hackled  flax,  all  the  linen  in  the  house 
&  the  ready  hackled  flax,  household  good  &  kitchen  furniture  as 
much  she  chooses  —  a  house  clock  —  &  the  linen  and  hackled  flax. 
"  The  mill  &  lands  &  house  bequeathed  to  his  widow  after  her 

his  son          in  fee  g.  ir.  "?a  if  any  he  gets  -f- 

death  to  go  to  the  male  heirs  of  J-!.r.  Tobias  A  and  &  for  want  of 
male  heirs  it  shall  go  to  the  males  of  John  in  fee  —  &  to  be  valued 
by  5.  men  —  c-.V"V~*  ~  -----  <u~1':fe-'  -  '*""""•  fnr  his  .wijow  ffv* 


'T;  at  a  valuation  to  be 


fixed  either  by  self  hereafter  «-r  but  if  not  done  to  be  valued  by  5. 
men  &  in  parcels  or  or  whole  among  them. 

v-~-  v  hick  y&  oak 

"  That  TxNfjXaeliver  2.  cords  of  good  A  wood,  &  my  son-in-law's 
B.  to  deliver  a  }\d  of  hickl.  wood  each  to  the  house  ready  cut  & 
split  for  a  &/bve  oXfire  place. 

'•  to  be  Jri!.!^J  parted  &  val  £ 

"  The  mill  house  and  lands  of  100.  acres  are  A  ?-uI»v.J  after  the 
death  of  the  widow  by  5.  men  &c.  but  if  no  gi  child  B.  it  shall  go  to 
all  my  childJi  &  parted  &  appr£.  among  them. 

when  married 

"  The  ^r  2.  unmarried  girls  A  to  be  furnished  with  cattle  a  horse  & 

each  that  is 

a  mare  saddle  &  bridle  10.  head  of  cattle  A  4.  cows  3.  stears  3.  hei- 

with  &c.    other 

fers — 3.  beds  A  &  A  household  goods  in  the  same  as  those  2.  which 

are 

wefe  married  got. 

in  part  of  his  wife's  legc.y 

"  Rohrers  debt  to  be  charged  against  him  A  agreeable  to  his  bond 
r^-^ ^  ^  ;, ~-'\\-  ~adc. 

"  Erors.  Fiouui'ck  F^hl  his  son  Tobias  &  Jacob  Fehl  &  Fre- 
derick. 


454  SUPREME  COURT  [Lancaster, 

[Rohrer  v.  Stehman.] 

"  Wills  made  before  to  be  revoked. 

"  Residue — amongst  all  6.  children. 

"  Quere,  is  nothing  to  be  paid  out  of  the  lands  given  to  John's 
children — No.  .£2000.  to  be  divided  among  4.  daughters. 

"Nov.  14,  1814. 

"  Note — the  widow  (of  John  dece'd)  to  have  possession  of  the 
lands  given  to  his  4.  Gl  children  to  keep  possession  of  the  lands 

until  A  her  death  marriage  or  removal  from  it,  and  she  must  bring 
up  &  maintain  them  after  which  the  appraiser^  to  take  place. 

"  These  are  the  notes  referred  to  in  my  deposition  taken  in  the 
Register's  court  June  6th  1815. 

"  JOHN  HUBLEY." 

The  counsel  for  the  plaintiff  then,  further  to  maintain  the  issue  on 
their  part,  gave  in  evidence  the  record  of  a  suit,  John  Bachman  et  al. 
v.  Tobias  Stehman  et  al,  to  April  term  1815,  No.  713,  in  the  court  of 
common  pleas  of  Lancaster  county  ;  and  further  examined  Frederick 
Fehl,  who  testified  as  follows: 

"  Tobias  Stehman  has  three  sons ;  Tobias  Stehman  the  son  I  mean  ; 
he  was  single  when  his  father  died ;  his  mother  survived  his  father 
six  weeks.  Tobias  the  father  had  two  daughters  married  at  the  time 
of  his  death ;  he  furnished  them  off  well,  as  I  heard,  in  cows,  steers, 
beiUand  desks,  riding  horses  and  saddle  ;  the  oldest  got  that ;  Rohrer's 
wife  did  not  get  that,  I  think,  T)ut  she  might ;  Kitty  got  the  same  as 
Betsey,  except  horse  and  saddle. 

"  X  In  the  share  of  two  hundred  acres,  the  daughters  were  to 
have  it  to  them,  their  heirs  and  assigns." 

Joseph  Hubley  sworn,  shown  writing — "  It  is  my  father's  hand 
writing;  it  is  his  signature;  it  was  in  the  year  1814  or  1815,  I  think 
he  was  called  on  in  June  1815  before  that;  I  never  knew  him  to  go 
out  but  once;  this  handwriting  is  with  different  ink  from  the  other ; 
the  date  is  my  father's  handwriting,  but  it  is  in  different  ink." 

Jacob  Fehl  again — "  500  dollars  each  one  has  in  cattle  and  goods, 
and  beds  and  one  thing  and  another,  a'nd  every  sort  of  household 
furniture ;  I  understand  the  single  ones  were  to  have  500  dollars  like 
the  other  two — when  John  was  married  he  got  the  same. 

"XI  swore  that  each  of  the  single  daughters  were  to  have  500 
dollars  or  the  worth  of  it ;  nothing  said  about  horses  and  cattle  ;  he 
said  each  were  to  get  500  dollars  in  money.  He  said  he  had  given 
his  married  daughters  500  dollars  worth,  and  his  son  John ;  the  single 
daughters  were  to  receive  the  same  the  others  had — 500  dollars ; 
500  were  mentioned,  whether  in  money  or  not,  I  don't  know  ;  they 
were  each  to  have  500  dollars  in  furniture." 

Henry  Gall,  plaintiff's  witness,  being  under  cross-examination  by 
the  defendants,  testified  as  follows — (shown  a  paper  purporting  to  be 
the  last  will  and  testament  of  Tobias  Stehman,  dated  16th  November 
1814,  prout  the  same) — "  This  is  my  handwriting ;  Tobias  declared 


May  1833.]  OF  PENNSYLVANIA.  455 

[Rohrcr  v.  Stehman.] 

this  to  be  his  will ;  Rathfon  is  dead  and  Rohrer  is  also  dead,  he  was 
of  sound  mind  then;  this  is  the  paper  that  was  not  read  to  him." 

The  plaintiff,  to  maintain  the  issue  on  his  part,  then  offered  in  evi- 
dence the  record  of  an  issue  of  devisavit  vel  non  in  the  court  of  com- 
mon pleas  of  Lancaster  county  to  April  term  1815,  No.  713,  in  which 
John  Bachman,  &c.  was  plaintiff,  and  Tobias  Stehman  and  others 
defendants.  The  counsel  for  the  defendants  objected  to  the  admiss- 
ion of  the  said  record  in  evidence :  but  after  argument  the  court 
overruled  their  objection  and  admitted  the  same.  To  which  opinion 
of  the  court  the  counsel  for  the  defendant  did  then  and  there  except 
and  pray  the  court  to  seal  this  their  bill  of  exceptions,  which  is  done 
accordingly. 

Plaintiff's  points. 

1.  That  no  formality  is  required  to  make  a  legal  will  where  the 
subject  matter  of  the  will  is  put  in  writing  and  proved  by  two  wit- 
nesses so  to  be  by  the  direction  of  the  testator,  and  the  same  is  done 
in  his  lifetime  ;  and  therefore  it  is  not  necessary  the  writing  should 
be  signed  by  the  testator,  nor  that  it  should  be  sealed,  nor  that  there 
should  be  any  subscribing  witnesses  to  it ;  and  that  such  writing 
would  be  good  without  any  of  those  matters  and  all  of  them. 

2.  That  when  a  will  contains  several  distinct  devises  and  bequests, 
if  any  of  them  are  found  to  be  defective  it  will  not  defeat  or  in  any 
way  impair  the  others,  which  will  remain  good  and  lawful  devises. 

3.  That  minutes  or  notes  fairly  taken  in  writing  for  the  purpose 
of  drawing  the  will  of  the  person,  which  is  prevented  from  being 
drawn  into  form  and  signed  by  the  testator  and  witnesses,  by  the 
death  of  testator,  or  any  other  accidental  cause ;  if  the  said  notes  or 
minutes  are  proved  to  be  taken  down  from  the  testator  and  in  his 
presence  and  declared  to  be  all  right  by  the  testator,  the  said  notes 
or  minutes  will  be  a  good  will. 

4.  That  if  the  jury  believe  the  testimony  of  Frederick  Fehl,  Jacob 
Fehl  and  John  Hubley,  the  minutes  or  notes  taken  from  Tobias  Steh- 
man by  John  Hubley  are  sufficiently  proved  to  be  the  same  paper 
containing  the  minutes  which  is  now  before  the  jury. 

Defendant's  points. 

1.  That  the  authentication  of  the  minutes  taken  by  John  Hubley, 
Esq.  and  alleged  by  the  plaintiff  to  be  the  last  will  and  testament  of 
Tobias  Stehman  deceased,  by  the  requisite  number  of  persons,  is  a 
mere  abstract  question  of  law  to  be  decided  by  the  court.     The  jury 
are  therefore  bound  by  the  opinion  of  the  court  as  to  whether  there 
has  been  the  requisite  proof  in  this  case  to  establish  those  minutes  as 
the  last  will  of  the  alleged  testator. 

2.  In  order  to  establish  these  minutes  as  the  last  will  of  Tobias 
Stehman,  there  must  be  proof  by  two  witnesses  that  he  knew  their 
whole  contents.     In  cases  in  which  the  testator  has  signed  the  in- 
strument, and  his  signature  is  established  by  the  testimony  of  two 
witnesses,  such  knowledge  is  presumed ;  but  in  this  case,  where  the 
minutes  were  neither  written  nor  signed  by  the  testator,  such  know- 
ledge must  be  clearly  proved. 


456  SUPREME  COURT  [Lancaster, 

[Rohrer  v.  Stehman.] 

3.  That  the  proof  of  the  execution  of  these  minutes  must  be  made 
by  two  witnesses,  each  of  whom  must  separately  depose  to  all  facts 
necessary  to  complete  the  chain  of  evidence,  so  that  no  link  in  it  may 
depend  upon  the  credibility  of  but  one.     Each  of  the  two  witnesses 
in  this  case  must  make  proof  so  complete  in  itself  that  if  the  act  of 
assembly  were  out  of  the  question,  the  case  would  be  well  made  out 
by  the  evidence  of  either. 

4.  That  the  two  witnesses,  to  wit  John  Hubley  and  Frederick  Fehl, 
who  were  present  at  the  time  when  the  instructions  were  given  and 
the  minutes  were  taken,  must  therefore  correspond  with  each  other 
as  to  every  material  particular,  otherwise  the  minutes  cannot  be 
established  ;    that  therefore,  as  there  is  a  variance   between  the 
minutes  and  the  instructions  as  they  are  proved  by  Frederick  Fehl  in 
the  following  among  other  important  particulars,  these  minutes  can- 
not be  established,  to  wit,  by  the  minutes  the  mill,  house  and  one 
hundred  acres  of  land  are  devised  to  the  widow  of  the  alleged  testa- 
tor for  life,  remainder  to  the  male  heirs  of  his  son  Tobias  in  fee,  and 
for  want  of  such  male  heirs  "  it  shall  go  to  the  males  of  John  in  fee,"  to 
be  valued  amongst  them  in  parcels  or  in  whole  by  five  men  after  the 
death  of  his  widow,  but  if  no  grandchildren,  it  shall  go  to  all  my 
children  and  be  parted  and  appraised  among  them.     By  the  testi- 
mony of  Frederick  Fehl,  the  instructions  of  the  alleged  testator  were, 
that  the  premises,  after  the  death  of  his  widow,  should  go  to  his  son 
Tobias  if  he  gets  boys,  and  if  he  don't  get  no  boys,  then  to  Tobias 
the  eldest  son  of  his  son  John,  and  if  he  should  die  before  twenty-one, 
then  to  Christian  the  second  son  of  his  son  John,  and  so  on  in  suc- 
cession ;  but  whoever  was  to  get  the  premises  it  should  be  appraised 
to  him  and  the  money  divided  into  six  shares  among  all  his  children 
and  the  children  of  his  son  John  deceased.     The  testimony  of  Jacob 
Fehl  corresponds  with  that  of  Frederick,  except  that  Jacob  expressly 
mentions  what  the  law  would  have  implied,  that  it  should  go  to 
Tobias  Stehman  the  son  of  the  alleged  testator  if  he  gets  a  boy  before 
his  mother's  death. 

5.  That  as  John  Hubley  has  sworn,  that  there  was  a  great  deal  of 
conversation  at  the  time  he  took  the  minutes,  and  he  "  supposed  he 
would  be  able  to  write  the  will  from  those  explanatory  observations 
and  the  minutes  taken  by  him"  and  that  it  was  understood  both  by 
him  and  the  alleged  testator,  that  these  minutes  were  not  to  be  con- 
sidered as  his  will,  but  a  mere  memorandum  from  which  he  was  to 
draw  an  instrument  of  writing,  afterwards  to  be  executed  by  the  al- 
leged testator  as  his  will,  and  that  the  said  minutes  were  merely 
intended  to  assist  his  recollection  ;  the  testimony  of  John  Hubley  is 
not  sufficient,  nor  is  he  one  sufficient  witness,  admitting  all  he  has 
sworn  to  be  true,  to  establish  the  minutes  as  a  will. 

6.  That  the  identity  of  the  minutes  must  be  established  by  two 
witnesses  each  of  whom  will  swear,  that  they  are  the  same  which 
were  read  to  the  alleged  testator.     That  Frederick  Fehl  who  never 
had  the  minutes  in  his  hands  till  this  trial — who  could  not  read  them 


May  1833.]  OF  PENNSYLVANIA.  457 

[Rohrer  v.  Stehman.] 

and  who  swears  that  there  was  no  mark  upon  them  by  which  he 
knew  them,  but  still  he  thinks  they  are  the  same,  is  not  a  sufficient 
witness  ;  that  the  deposition  of  John  Hubley  does  not  sufficiently  esta- 
blish their  identity  ;  and  that  proof  that  they  were  in  the  hands  of 
John  Hubley,  and  at  the  office  of  the  magistrate  when  his  deposition 
was  taken,  does  not  vary  the  case. 

7.  That  a  material  variance  in  any  particular  between  the  instruc- 
tions and  the  minutes,  will  destroy  the  whole  of  the  minutes  :  that 
therefore  if  the  the  jury  believe  the  testimony  of  Frederick  and  Jacob 
Fehl  relative  to  the  instructions  given  by  the  alleged  testator  con- 
cerning the  mill,  house  and  one  hundred  acres  of  land — their  verdict 
should  be  rendered  in  favour  of  the  defendant. 

8.  That  the  testimony  given  by  Tobias  Stehman,  the  plaintiff  in 
this  cause,  is  not  sufficient  in  point  of  law  to  establish  the  minutes 
taken  by  John  Hubley  as  the  last  will  and  testament  of  Tobias  Steh- 
man deceased. 

Charge  of  the  court. 

This  is  an  issue  formed  under  the  directions  of  the  register's  court, 
to  ascertain  by  the  verdict  of  a  jury  whether  a  certain  paper  contain- 
ing minutes  and  notes  taken  by  the  late  John  Hubley,  Esq.  on  the 
14th  of  November  1814,  of  certain  instructions  then  given  to  him  by 
Tobias  Stehman,  which  paper  is  alleged  by  the  plaintiff  to  be  the  last 
will  and  testament  of  his  father  Tobias  Stehman,  be  his  last  will  and 
testament,  or  not. 

It  appears  that  Tobias  Stehman  being  desirous  of  making  a  new 
will,  different  from  one  he  had  already  made,  sent  for  Mr  Hubley  and 
gave  him  instructions  as  to  the  manner  in  which  he  wished  to  dis- 
pose of  his  estate.  Previously  to  Mr  Hubley's  arrival,  Mr  Frederick 
Fehl  had  taken  some  notes  of  his  directions  in  German — Mr  Hubley 
testifies  that  he  did  not  make  use  of  these  notes — but  he  took  down 
the  instructions  of  Mr  Stehman — and  he  says  that  when  the  instruc- 
tions were  written  down  they  were  read  over  to  him — that  Mr  Steh- 
man  approved  of  the  minutes  made  by  Mr  Hubley.  Mr  Frederick 
Fehl  says  they  were  read  over  to  Mr  Stehman  and  that  he  approved 
of  them.  The  witnesses  to  these  particulars  and  others  which  re- 
late to  the  subject  are  Jacob  Fehl,  Frederick  Fehl  and  John  Hubley, 
Esq.  You  will  pay  particular  attention  to  their  evidence  and  the 
other  testimony  which  has  been  offered,  and  give  to  all  the  testimony 
that  weight  to  which  you  may  think  it  entitled. 

Mr  Hubley  took  the  minutes  home  with  him  ;  he  prepared  a  will 
in  due  form  for  execution  which  was  sent  out  to  Tobias  Stehman,  who 
executed  it  without  reading  it  or  having  it  read  to  him,  and  it  is 
testified  that  he  was  incapable  of  reading  it.  This  will  so  executed 
has  been  declared  invalid.  And  it  is  contended  by  the  plaintiff  in 
this  case,  that  the  instructions  taken  down  by  Mr  Hubley  constitute 
the  last,  will  and  testament  of  Tobias  Stehman. 

The  act  of  assembly  respecting  wills  requires  that  all  wills  should 


458  SUPREME  COURT  [Lancaster, 

[Rohrer  v.  Stehman.] 

be  in  writing  and  be  proved  by  at  least  two  credible  witnesses. 
Written  declarations  of  a  man's  rnind,  as  to  the  manner  in  which  his 
estate  shall  go  after  his  death,  made  animo  testandi,  that  is  with  the 
intention  of  disposing  by  will,  may  amount  to  a  will  when  duly 
proved.  No  formality  is  required  to  make  a  legal  will  where  the 
subject  matter  of  the  will  is  put  in  writing,  and  proved  by  two  wit- 
nesses to  be  by  the  direction  of  the  testator,  and  the  same  is  done  in 
his  life  time  ;  and  therefore  it  is  not  necessary  that  the  writing  should 
be  signed  by  the  testator,  nor  that  it  should  be  sealed,  nor  that  there 
should  be  any  subscribing  witness  to  it ;  such  writing  may  be  good 
without  being  accompanied  by  either  of  these  particulars. 

The  law  is,  that  where  minutes  or  notes  are  fairly  taken  in  writing 
for  the  purpose  of  drawing  the  will  of  a  person,  which  is  prevented 
from  being  drawn  into  form  and  signed  by  the  testator  and  witnesses, 
by  the  death  of  the  testator,  or  any  accidental  cause,  and  if  these 
notes  or  minutes  are  proved  by  two  witnesses  to  be  taken  down  from 
the  testator  and  in  his  presence  and  declared  to  be  all  right  by  the 
testator,  they  will  constitute  a  good  will. 

And  where  a  will  contains  several  distinct  devises  and  bequests, 
if  any  of  them  are  found  to  be  defective,  it  will  not  defeat  or  in  any 
way  impair  the  others,  which  will  remain  good  and  lawful  devises. 

We  are  asked  by  the  defendant's  counsel  to  instruct  you  that  the 
anthentication  of  the  minutes  taken  by  Mr  Hubley,  by  the  requisite 
number  of  witnesses,  is  an  abstract  question  of  law  to  be  decided  by 
the  court ;  that  the  jury  are  therefore  bound  by  the  opinion  of  the 
court  as  to  whether  there  has  been  the  requisite  proof  in  this  cause 
to  establish  those  minutes,  as  the  last  will  of  the  alleged  testator. 

There  is  no  doubt  that  the  authentication  of  a  will  by  the  requi- 
site number  of  witnesses  is  matter  of  law  for  the  determination  of 
the  court ;  and  therefore  where  a  will  is  drawn  up  and  signed  by 
the  testator,  and  witnesses  are  called  in  to  attest  it,  it  is  for  the  court 
to  determine  whether  it  is  authenticated  by  the  requisite  number  of 
witnesses. 

But  in  order  to  establish  these  minutes  as  the  last  will  of  Tobias  Steh- 
man, there  must  be  proof  by  two  witnesses  that  he  knew  their  whole 
contents.  In  cases  in  which  the  testator  has  signed  the  instrument, 
and  his  signature  is  established  by  the  testimony  of  two  witnesses, 
such  knowledge  is  presumed;  but  in  a  case  of  this  kind,  where  the 
minutes  were  neither  written  nor  signed  by  the  testator,  such  know- 
ledge must  be  clearly  proved.  And  you  are  the  judges  to  determine 
whether  it  has  been  so  proved  or  not. 

The  supreme  court  have  decided  that  the  execution  of  a  will  must 
be  proved  by  two  witnesses,  each  of  whom  must  separately  depose 
to  all  facts  necessary  to  complete  the  chain  of  evidence  so  that  no 
link  in  it  may  depend  upon  the  credibility  of  but  one.  Therefore  to 
establish  the  minutes  in  this  case,  each  of  the  two  witnesses  called 
to  establish  them  must  make  proof  complete  in  itself,  so  that  if  the 


May  1833.]  OF  PENNSYLVANIA.  459 

[Rohrer  v.  Stehman.] 

act  of  assembly  were  out  of  the  question  the  case  would  be  well  made 
out  by  the  evidence  of  either. 

The  two  witnesses  who  were  present  at  the  time  when  the  instruc- 
tions were  given  and  the  minutes  were  taken  must  correspond  with 
each  other,  as  to  every  material  particular — and  therefore  a  material 
variance  between  the  minutes  and  the  instructions  will  prevent  the 
minutes  from  being  established. 

So  if  Mr  Hubley,  depending  upon  his  memory  and  supposing  he 
would  be  able  to  write  the  will  from  his  recollection  of  what  was 
said  by  the  testator,  has  omitted  any  matters  which  the  testator  in- 
tended to  insert  in  his  will,  the  minutes  cannot  be  established  as  his 
will. 

The  jury  are  the  judges  of  the  credibility  of  the  witnesses  and  of 
the  meaning  to  be  attached  to  the  expressions  used  by  them  in  the 
course  of  their  testimony.  The  identity  of  the  minutes  must  be 
established  by  two  witnesses,  and  whether  it  has  been  established  by 
Mr  Hubley  and  Mr  Frederick  Fehl  is  for  you  to  determine. 

We  are  asked  to  say  that  if  the  jury  believe  the  testimony  of 
Frederick  Fehl,  Jacob  Fehl  and  John  Hubley,  that  the  minutes  or 
notes  taken  from  Tobias  Stehrqan  by  Mr  Hubley  are  sufficiently 
proven  to  be  the  same  papers  containing  the  minutes  which  is  now 
before  the  jury.  Supposing  all  they  say  to  be  true  as  they  have  ex- 
pressed it,  the  effect  of  what  they  have  said  is  to  be  determined  by  the 
jury  and  they  must  judge,  under  all  the  evidence  which  has  been 
adduced,  whether  the  identity  has  been  legally  proved. 

Errors  assigned. 

1.  The  court  erred  in  admitting  the  defendant  in  error  to  give  in 
evidence  the  minutes  taken  by  John  Hubley,  Esq.  on  the  14th  of 
November  1814  prout  the  same  ;  to  which  opinion  of  the  court  the 
first  bill  of  exceptions  was  taken. 

2.  The  court  erred  in  admitting  the  record  of  an  issue  of  devisavit 
vel  non  in  the  court  of  common  pleas  of  Lancaster  county  to  April 
term  1815,  No.  713,  and  the  caveat  and  proceedings  of  the  register's 
court ;  to  which  opinion  of  the  court  the  second  bill  of  exceptions 
was  taken. 

3.  The  court  erred  in  not  fully  answering  the  first  point  of  the 
plaintiff  in  error  ;  and  so  far  as  it  is  answered,  it  is  error. 

4.  The  court  erred  in  their  answer  to  the  second  point  of  the  plain- 
tiff in  error  in  the  following  words :  "  and  you  are  the  judges  to  de- 
termine whether  it  has  been  so  proved  or  not." 

5.  The  court  erred  in  not  having  given  a  full  answer  to  the  fourth 
point  of  the  plaintiff  in  error,  and  so  far  as  they  have  answered  it, 
there  is  error  in  their  answer. 

6.  The  court  erred  in  not  fully  answering  the  fifth  point  of  the 
plaintiff  in  error,  and  so  far  as  they  have  answered  it,  there  is  error 
in  their  answer. 

7.  The  court  erred  imiot  having  fully  answered  the  sixth  point  of 


460  SUPREME  COURT  [Lancaster, 

[Rohrer  v.  Stchinan.j 

the  plaintiff  in  error,  and  so  far  as  it  is  answered  there  is  error  in 
their  answer. 

8.  The  court  erred  in  not  fully  answering  the  seventh  point  of 
the  plaintiff  in  error,  and  so  far  as  answered  there  is  error  in  their 
answer. 

9.  The  court  erred  in  not  fully  answering  the  eighth  point  of  the 
plaintiff  in  error,  and  so  far  as  answered  there  is  error  in  their  answer. 

10.  The  court  erred  in  stating  that  "  the  law  is  that  where 
minutes  or  notes  are  taken  in  writing  for  the  purpose  of  drawing  the 
will  of  a  person,  which  is  prevented  from  being  drawn  into  form  and 
signed  by  the  testator  and  witnesses  by  the  death  of  the  testator  or 
any  other  accidental  cause,  and  if  these  notes  or  minutes  are  proved 
by  two  witnesses,  to  be  taken  down  from  the  testator  and  in  his  pre- 
sence and  declared  to  be  all  right  by  the  testator,  they  will  consti- 
tute a  good  will." 

11.  The  court  erred  instating  that  "where  a  will  contains  sev- 
eral distinct  devises  and  bequests,  if  any  of  them  are  found  to  be 
defective,  it  will  not  defeat  or  in  any  way  impair  the  others,  which 
will  remain  good  and  lawful  devises." 

12.  The  court  erred  in  the  last  paragraph  of  their  charge,  which 
states,  "  we  are  asked  to  say  that  if  the  jury  believe  the  testimony  of 
Frederick  Fehl,  Jacob  Fehl  and  John  Hubley,  that  the  minutes  or 
notes  taken  from   Tobias  Slehman  by  Mr  Hubley  are  sufficiently 
proven  to  be  the  same  papers  containing  the  minutes  which  is  now 
before  the  jury.     Supposing  all  they  say  to  be  true  as  they  have  ex- 
pressed it,  the  effect  of  what  they  have  said  is  to  be  determined  by 
the  jury,  and  they  must  judge  under  all  the  evidence  which  has 
been  adduced,  whether  the  identity  has  been  legally  proved." 

Rogers,  for  plaintiff  in  error. 

Under  the  act  of  1705,  there  are  two  essential  requisites  to  a  will. 
1.  That  it  should  be  in  writing.  2.  That  it  should  be  proved  by 
two  witnesses.  The  question  of  the  authentication  of  an  instru- 
ment ig  a  matter  of  law  for  the  decision  of  the  court.  6  Serg.  <$• 
Rawle  489.  Was  John  Hubley  such  a  witness  as  contemplated  in  the 
case  in  3  Yeates  5111  These  notes  were  taken  as  mere  memor- 
anda to  refresh  the  memory  of  John  Hubley,  and  there  were  explana- 
tory observations  which  were  never  read  to  Tobias  Stehman.  John 
Hubley  is  an  insufficient  witness,  and  even  if  he  is  sufficient,  the  other 
two  do  not  amount  to  another  witness.  6  Serg.  fy  Rawle  47. 
Every  thing  contained  in  Hubley's  notes  is  in  direct  opposition  with 
what  is  contained  in  the  testimony  of  Frederick  Fehl  and  Jacob  Fehl, 
and  therefore,  there  is  no  connection  between  the  witnesses  in  support 
of  the  will,  and  no  one  would  be  sufficient  with  respect  to  all  the 
bequests. 

There  are  in  fact  two  wills,  one  of  John  Hubley,  the  other  of 
Frederick  Fehl,  each  of  which  is  contrary  to  the  other.  16  Serg. 
4»  Rawle  82.  The  act  of  1705  prescribes  no  particular  form  of 


May  1833.]  OF  PENNSYLVANIA.  461 

[Rohrer  v.  Stehman.] 

will ;  yet  in  Pennsylvania  every  loose  scrap  of  paper,  even  if  proved 
by  two  witnesses,  would  be  a  sufficient  will.  Every  scrap  of  paper 
made  in  contemplation  of  death,  is  not  to  be  received  as  a  will. 
Burners  Appeal,  opinion  delivered  by  Chief  Justice  Gibson,  at  Phila- 
delphia. These  notes  were  never  intended  as  a  will,  but  mere  in- 
structions and  memoranda  to  assist  in  drawing  the  will. 

A  will  is  a  whole  and  cannot  be  divisible ;  the  distinction  is,  what 
is  matter  of  construction,  and  what  is  matter  of  positive  enactment. 

Frazer,  for  defendant  in  error.  -«. 

As  the  identity  of  the  paper  was  disputed,  it  became  a  matter  of  faCV- 
to  be  submitted  to  the  jury ;  and  the  paper  itself  was  proper  subject 
matter  for  the  consideration  of  the  jury,  on  this  question  of  identity. 
If  the  identity  of  the  paper  had  not  been  denied,  the  court  below  would 
not  have  left  it  to  the  jury.  Mr  Fehl  having  heard  the  minutes  read  by 
Mr  Kubley  to  Tobias.,  and  Mr  Stehman  having  made  no  objection  to  the 
correctness  of  these  minutes,  is  one  good  and  sufficient  witness  to 
establish  the  validity  of  the  wili.  Mr  Hubley,  the  person  who  drew 
the  minutes,  read  them  to  T.  Stehman,  and  having  corrected  and 
mac^s  tl;e  alterations  directed  by  Stehman,  and  having  afterwards 
read  tha  minutes  as  corrected  to  Stehman,  without  any  objection 
from  him,  makes  John  Hubley  a  second  complete  witness.  An  ambi- 
guity appearing  on  the  face  cf  the  will,  is  not  sufficient  to  invalidate 
it,  and  is  not  a  question  on  the  issue  of  devisavit  vel  now.  6  Serg. 
<$•  Rawle  56.  The  fact  cf  execution  and  the  sanity  of  the  testator, 
are  matters  of  fact  for  the  determination  of  the  jury ;  the  legality  of 
execution  is  a  matter  of  law  for  the  court.  1  Smith  40 ;  Patterson  v. 
Patterson,  6  Serg.  fy  Rawle  .r3  ;  3  Yeates  511  ;  6  Serg.  fy  Rawle  454, 
494 ;  16  Serg.  #  Rawle  82 ;  1  Serg.  fy  Rawle  263  ;  6  Serg.  # 
Rawle  47 ;  19  Johns.  386  ;  1  Pick.  453  ;  Powell  on  Dev.  457. 

J".  Hopkins,  for  defendant  in  error.    . 

The  decisions  have  been  the  same  under  the  acts  of  assembly 
and  the  statutes  of  Henry  8,  with  the  exception  of  the  proof  by  two 
witnesses.  6  Serg.  fy  Rawle  455.  At  the  time  of  the  concoction 
of  such  an  instrument,  there  would  be  a  great  deal  of  conversation, 
and  the  testator  would  necessarily  say  many  things,  which  after- 
wards he  might  think  better  of,  upon  the  consequences  being  ex- 
plained, and  would  after  direct  a  different  disposition  of  what  he  first 
mentioned,  but  after  the  instrument  had  been  read  to  him,  and  he 
approved  of  it,  every  thing  which  had  been  said  (except  in  cases  of 
fraud  and  imposition)  contrary  to  the  instrument  became  of  no  effect, 
and  F.  Fehl  had  heard  T.  Stehman  approve  of  the  minutes,  make 
Frederick  Fehl  one  complete  witness.  Mr  Hubley  has  testified  that 
he  drew  the  instrument,  and  that  after  he  drew  it,  he  read  it  twice 
to  him  deliberately,  and  that  it  was  written  to  the  entire  satisfac- 
tion of  Mr  Stehman ;  and  he  constitutes'a  second  witness.  No  in- 
formal will  could  ever  be  supported,  if  the  light  conversations  made 


462  SUPREME  COURT  [Lancaster, 

[Rohrer  v.  Stehman.] 

previous  to  the  execution  of  it  could  have  the  effect  to  contradict  it. 
This  was  a  blended  case  of  fact  and  law,  depending  upon  written 
and  parol  evidence  ;  and  the  fact  and  law  being  so  intimately  con- 
nected, the  court  were  bound  to  leave  the  question  to  the  jury,  to 
ascertain  what  is  the  proper  character  of  the  paper.  1  Serg.  fy 
Rawle  176,  516;  4  Serg.  $>  Rawle  279 ;  7  Serg.  #  Rawle  372  ;  1 
Penns.  Rep.  386.  This  was  a  question  of  law  purely  for  the  con- 
sideration of  the  jury,  and  had  the  charge  been  that  they  were  or 
were  not  fully  proved,  it  would  have  been  error. 

The  court  could  not  charge  the  jury  as  requested,  because  it  would 
sinpugn  the  question  trying  ;  there  is  an  entirety  and  unity  in  the 
sentiments  of  Mr  Hubley  and  Fehl. 

When  there  are  distinct  and  separate  devises  unconnected  with 
the  other  parts  of  the  will  which  are  void,  these  separate  devises 
would  be  valid.  Powell  on  Dev.  29  ;  3  Rep.  31 ;  6  Serg.  fy  Rawle 
455. 

Buchanan,  in  reply. 

Is  the  authentication  of  a  will  matter  of  fact  to  be  determined  by 
a  jury,  or  a  question  of  law  to  be  determined  by  the  court  1  If  it 
be  a  question  of  fact,  the  statute  of  frauds  is  entirely  useless.  If  you 
refer  it  to  a  jury  to  determine  the  matter,  a  jury  will  always  deter- 
mine in  favour  of  the  authenticity  of  a  will  if  there  be  one  credible 
witness.  In  this  case,  it  is  a  sheer  question  of  law ;  and  the  question 
was,  Supposing  all  the  testimony  in  this  case  to  be  true,  is  the  execu- 
tion of  this  instrument  sufficiently  proved.  Hock  v.  Hock,  GS.fyR.  47. 
The  law  has  determined,  that  two  witnesses  are  necessary  for  the 
proof  of  the  execution  of  a  will,  and  if  the  matter  were  submitted  to 
a  jury  one  witness  would  in  all  cases  substantiate  the  will.  The 
question  of  the  legality  of  the  execution  is  a  matter  of  law  to  be  de- 
termined by  the  court,  and  not  a  question  of  fact ;  6  S.  fy  R.  495  ;  16 
Serg.  4"  Rdwle  86  ;  although  the  question  whether  this  is  a  sufficient 
testamentary  disposition  of  the  property  of  Tobias  Stehman,  is  not, 
perhaps,  properly  before  the  court,  yet  I  will  discuss  the  question  as 
if  raised ;  and  the  first  question  will  be,  are  there  two  good  and  suf- 
ficient witnesses  1  there  is  not  even  one  complete  witness.  The  tes- 
timony of  Frederick  Fehl  is  in  direct  opposition  to  the  evidence  of 
John  Hubley,  with  respect  to  a  number  of  dispositions  of  the  property. 
One  set  of  instructions  has  been  proved  by  Mr  Fehl,  and  another 
set  of  instructions  has  been  proved  by  Mr  Hubley.  Mr  Hubley  does 
not  constitute  one  complete  witness  ;  for  he  says,  that  these  notes  do 
not  contain  the  whole  of  the  instructions  given  to  him  by  Tobias 
Stehman.  John  Hubley  was  a  witness  to  support  the  regular  will, 
but  could  not  be  a  witness  to  substantiate  these  notes ;  and  being  a 
witness  to  the  former  will,  would  be  in  direct  opposition  to  these 
minutes. 

Powell  on  Dev.  29.  The  court  will  not  consider  themselves  bound 
by  the  decision  under  the  statutes  of  Hen.  8 ;  under  which  all  loose 


May  1833.]  OF  PENNSYLVANIA.  463 

[Rohrer  v.  Stehman.] 

papers  were  held  to  be  good.  Is  it  right  that  when  there  are  two 
complete  witnesses  to  the  disposition  of  one  particular,  and  the  wit- 
nesses differ  in  respect  to  the  rest,  that  the  devise  on  which  they  con- 
cur should  be  carried  into  effect,  and  that  the  testator  would  die  in- 
testate as  respects  the  other  property? 

The  opinion  of  the  Court  was  delivered  by 

HUSTON,  J. — In  the  infancy  of  the  province  of  Pennsylvania, 
when  wealth  was  not  common,  and  the  distinction  between  real  and 
personal  estate,  as  to  liability  for  debts,  had  been  abolished,  an  act 
of  assembly  was  passed  concerning  probates  of  written  and  nuncu- 
pative wills,  and  for  confirming  devises  of  lands.  This  act  of  1705 
differed  widely  from  that  which  our  ancestors  had  left  in  force  in 
England,  both  as  to  the  substantial  and  formal  requisites  of  a  valid 
will  of  lands.  The  construction  put  on  it,  soon  after  its  enactment, 
handed  down  by  tradition,  is  first  found  in  Dallas's  Reports,  in  a  writ- 
ten and  permanent  form;  but  that  decision  was  made  by  judges  who 
had  been  lawyers  as  early  as  1750,  and  who  in  their  youth  must 
have  been  acquainted  with  others  who  had  practised  in  1730,  or 
even  1720.  Some  have  in  our  day  questioned  the  correctness  of  the 
construction  early  given  to  this  law ;  but  as  it  has  been  acted  upon  to 
the  present  day,  and  as  it  has  been  decided  that  a  trial  and  decision 
expressly  on  the  validity  of  a  will  does  not  preclude  heirs  or  devisees 
from  again  contesting  the  matter  in  ejectment  for  lands,  that  con- 
struction has  become  a  rule  of  property,  and  if  we  should  now  change 
it,  we  should  give  occasion  to  many  suits  and  destroy  many  titles 
(now  held  good)  in  the  hands  of  heirs  and  purchasers.  The  legis- 
lature have  at  present  before  them  a  bill  on  the  subject;  until  some 
provision  by  them,  we  are  bound  by  many  considerations  to  adhere 
to  what  has  been  decided,  even  though  some  of  those  decisions  have 
gone  further  than  we  could  wish.  "  All  wills  in  writing,  wherein  or 
whereby  lands,  tenements  or  hereditaments  within  this  province 
have  been  or  shall  be  devised,  being  proved  by  two  or  more  credible 
witnesses,  upon  their  solemn  oath,  or  by  other  legal  proof,  in  this  pro- 
vince," &c.  The  case  of  Slight  v.  Wilson,  I  Doll.  94,  has  remained 
unshaken ;  it  settles :  first,  that  it  is  not  necessary  that  a  will  devis- 
ing real  estate  in  Pennsylvania,  should  be  sealed ;  second,  nor  that 
all  the  subscribing  witnesses  should  prove  the  execution;  third,  nor 
that  the  proof  of  the  will  should  be  made  by  those  who  subscribed  as 
witnesses;  fourth,  nor  that  the  will  should  be  subscribed  by  wit- 
nesses. See  also  2  Binn.  414.  I  shall  not  cite  all  the  cases  in  our 
books.  Lessee  of  Eyster  and  others  v.  Young,  3  Yeates  511,  is  nearly 
this  case.  There  Mr  Rudisill  took  drawn  notes  from  the  mouth  of 
the  testator,  of  the  disposition  of  his  property,  intending  to  draw  a 
formal  will;  two  persons  were  in  the  room  and  heard  them  dictated; 
they  heard  them  read  over  to  testator  and  approved.  Mr  Rudisill 
drew  them  into  a  formal  will  more  copiously  and  fully,  and  containing 
some  clauses  which  Mr  Rudisill  had  trusted  to  his  memory.  The 


454  SUPREME  COURT  [Lancaster, 

[Rohrcr  v.  Stehman.] 

identity  of  the  paper  was  contested,  and  not  mgre  fully  proved,  not 
so  fully  as  in  this  case.  The  notes  were  established  as  the  will  by  a 
verdict  in  conformity  to  the  charge  of  the  court.  That  case,  and 
Arndt  v.  Jlrndt,  1  Serg.  $•  Raicle  256,  fully  establish,  that  memoranda 
written  by  another,  and  pro'ved  by  two  witnesses  to  have  been  ap- 
proved by  the  testator  or  written  by  the  testator  himself,  though  not 
put  into  a  formal  will  and  not  signed,  being  proved  by  two  witness- 
es to  be  the  testator's  handwriting,  may  be  a  good  will. 

In  the  present  case,  Frederick  Fehl  and  John  Hubley  fully  prove 
the  memoranda  to  have  been  dictated  by  the  testator,  and  to  have 
been  read  over  to  him  and  explained  by  Mr  Hubley,  and  in  some 
parts  corrected  at  this  reading;  and  then  to  have  been  declared  to  be 
all  right  by  the  testator.  It  was  read  a  second  time  after  these  cor- 
rections had  been  made,  and  these  explanations  given,  and  declared 
to  be  all  right.  This  paper  was  taken  home  by  Hubley  to  draw  a 
formal  will,  and  one  was  drawn,  but  executed  by  the  testator  without 
being  read  to  him,  and  for  that  reason  rejected  from  probate. 

Jacob  Fehl  corroborates  these  witnesses;  he  was  present  while  part 
of  the  directions  were  given,  but  went  away ;  the  next  day  the  tes- 
tator told  him  Hubley  was  drawing  the  will;  and  again  told  the  wit- 
ness to  bring  it  out  from  Hubley  to  him,  and  the  witness  did  so.  It 
was  executed  without  being  read,  because  all  these  were  Germans, 
and  could  not  read  English. 

The  identity  of  the  paper  was  as  fully  proved  as  is  generally  poss- 
ible; and  that  was  left  to  the  jury,  together  with  the  credibility  of 
the  witnesses. 

But  the  counsel  for  the  opponents  of  this  paper  as  a  will,  taxed 
the  memory  of  Frederick  and  Jacob  Fehl,  and  supposed  the  account 
they  gave  of  the  several  bequests  differed  in  some  of  the  details  from 
the  written  memoranda,  and  drew  an  argument  against  its  validity 
from  this.  Now  if  a  formal  will  is  read  in  the  presence  of  the  wit- 
nesses, before  its  execution,  and  they  in  court  prove  the  sanity  of  the 
testator  and  see  the  execution  of  the  will,  and  then  on  being  asked 
as  to  its  contents,  differ  a  little  or  a  good  deal,  or  if  after  the  lapse  of 
fifteen  years,  as  in  this  case,  this  want  of  recollection  or  inaccurate 
recollection  would  at  all  affect  the  validity  of  the  will,  or  the  bequest 
contained  in  it,  we  had  better  cease  to  write  wills.  So  in  this  case, 
after  the  proof  given,  that  it  was  dictated  by  the  testator,  read  over 
and  explanations  made  and  corrections,  and  then  read  again  and  all 
approved,  it  is  beyond  being  impugned  by  the  failure  of  minute  recol- 
lection of  witnesses  as  to  its  minute  details.  The  witnesses  prove 
distinctly,  that  every  possible  pains  were  taken  to  have  these  minutes 
correct;  they  were  written  item  by  item  as  dictated  ;  read  over  item 
by  item,  explained  and  approved  ;  and  then  all  read  together,  and  all 
approved.  That  those  who  did  this,  or  who  were  present  when  this 
was  done,  do  not  recollect,  after  fifteen  years,  all  that  was  then  writ- 
ten, or  do  not  recollect  it  exactly  as  written  is  natural;  is  what  must 
always  happen;  and  is  one  main  reason  why  wills  must  be  in  \vri- 


May  1833.]  OF  PENNSYLVANIA.  465 

[Rohrer  v.  Stehman.] 

ting.  It  is  possible  to  destroy  the  force  of  written  memoranda,  by 
proving  them  to  have  been  unfairly  taken  down,  or  falsely  read. 
In  the  same  manner  a  will  or  deed  may  be  impugned.  It  was  not 
openly,  nor  I  think  covertly,  suggested,  that  John  Hubley  was  guilty 
of  any  thing  like  this.  It  was  not  put  to  the  witnesses  to  say  posi- 
tively, that  any  thing  was  in  these  minutes  which  the  testator  did 
not  direct;  nor  to  say,  that  the  witness  was  sure  he  directed  any  thing 
which  is  not  to  be  found  there.  They  stated  the  directions  ac- 
cording to  their  recollection;  but  no  one  of  them  was  asked  to  point  out 
a  material  variance,  nor  to  say,  that  his  recollection  of  any  particular 
was  so  perfect  that  he  would  himself  rely  on  his  own  recollection  in 
contradiction  to  the  minutes. 

There  were  two  bills  of  exceptions  to  the  admission  of  testimony; 
neither  of  which  was  much  insisted  on  here. 

The  first  is,  that  the  memorandum  or  minutes  taken  down  by  Mr 
Hubley  should  not  be  read  to  the  jury — now  I  should  like  to  know  how 
the  jury  could  have  decided  one  of  defendant's  points,  viz.  whether  the 
parol  proof  of  instructions,  and  the  minutes  agreed  or  differed,  unless 
the  minutes  had  been  read ;  but  I  pass  this.  Wherever  two  witnes- 
ses prove  a  paper  as  a  will,  such  paper  always  has  gone,  and  always 
must  go  to  the  jury,  who  are  to  decide  whether,  on  the  whole  proof, 
it  is  the  will  of  testator  or  not. 

The  next  bill  of  exceptions  is  still  less  tenable.  After  the  plain- 
tiffs had  gone  through  their  testimony,  the  defendants  produced  the 
paper  drawn  by  John  Hubley  as  a  formal  will,  and  which  had  not 
been  read  by  or  to  the  testator ;  but  which  the  testator  had  executed 
in  the  presence  of  two  persons,  who  had  subscribed  it  as  witnesses; 
and  the  defendant  called  those  witnesses  and  proved  the  execution 
of  it  by  them ;  this,  evidently,  with  the  intention  of  arguing  to  the 
jury,  that  this  latter  paper  was  the  true  will. 

That  paper  had,  however,  been  offered  for  probate,  by  the  same 
persons  who  now  offered  the  minutes  as  the  will,  and  on  a  trial  of  a 
feigned  issue  in  the  same  court,  before  the  same  judges,  it  had  been 
decided  that  the  paper  now  offered  by  the  defendants  as  the  will, 
was  not  the  last  will  of  Tobias  Stehman;  and  the  plaintiffs  offered 
and  read  the  record  of  such  trial  and  decision.  In  fact,  the  defend- 
ant's counsel  ought  not  to  have  offered  as  the  will  that  condemned 
paper;  if  objected  to,  the  court  ought  to  have  rejected  it;  when  it  had 
been  read,  the  shortest  way  of  disposing  of  it  was,  to  show  the  record 
which  had  disposed  of  it. 

Points  were  proposed  as  matters  of  law,  on  which  the  court  was 
requested  to  instruct  the  jury.  Some  of  these  are  not  in  the  most 
perspicuous  form ;  some  are  immaterial ;  some  suggest  matters  not 
material  in  this  cause.  The  charge  of  the  court  was  an  answer  to 
all  that  was  material  in  this  case,  and  in  it  there  wa.s  no  error  against 
the  party  complaining;  if  any  thing  was  at  all  wrong,  it  was  in  their 
favour. 

Judgment  affirmed. 
3i 


466  SUPREME  COURT  [Lancaster, 


Stehman  and  others  against  Stehman. 

A,  after  devising  a  tract  of  land  to  the  children  of  his  son  John  who  was  dead,  and 
another  to  his  son  Tobias ;  devised  one  hundred  acres  to  his  widow  for  life,  and  after 
her  death  "  to  the  male  heirs  of  Tobias,  if  any  he  gets,  in  fee,"  and  "  for  want  of  male 
heirs  of  Tobias,  to  go  to  the  male  heirs  of  his  son  John  in  fee  ;"  "  the  said  one  hun- 
dred acres  to  be  parted  and  valued  after  the  death  of  the  widow,  by  five  men;"  but 
if  no  grandchildren,  to  go-to  the  devisor's  children  and  be  divided  among  them.  At 
the  death  of  the  widow,  Tobias  was  single  and  without  children,  but  afterwards  mar- 
ried and  had  children.  Held,  that  the  limitations  over  after  the  death  of  the  widow 
were  concurrent  contingent  remainders,  and  for  want  of  male  heirs  of  Tobias  at  her 
death,  vested  irrevocably  in  the  male  heirs  of  John, 

A  limitation  is  not  to  he  deemed  an  executory  devise  if  it  may  by  any  practicable 
construction  be  sustained  as  a  contingent  remainder. 

No  presumption  of  an  intent  to  die  intestate  as  to  any  part  of  the  estate,  is  to  be 
made,  where  the  words  of  the  testator  will  carry  the  whole. 

APPEAL  from  the  circuit  court  of  Lancaster  county,  held  by  Chief 
Justice  Gibson. 

This  was  an  action  of  ejectment  brought  by  Tobias  Stehman, 
Christian  Stehman,  John  Stehman,  and  Jacob  Stehman  against  Tobias 
Stehman,  in  which  judgment  was  given  for  the  plaintiffs  upon  a 
special  verdict. 

Tobias  Stehman,  the  grandfather  of  the  plaintiffs  and  father  of  the 
defendant,  being  seised  in  fee  of  several  tracts  or  parcels  of  land,  by 
his  will  dated  the  14th  of  November  1814,  (said  will  being  contained 
in  the  memoranda  of  a  scrivener,  who  was  to  put  the  same  into  form) 
made,  among  others,  the  following  devises.  "  To  Tobias,  Christian, 
John  and  Jacob,  the  children  of  my  son  John  Stehman,  (the  plaintiffs) 
my  plantation  bought  of  Daniel  Brenneman  containing  one  hundred 
and  thirty-three  acres  to  hold  to  them  in  fee,  to  be  valued  and  ap- 
praised by  five  men  after  the  death,  marriage  or  removal  of  John's 
widow.  To  Tobias  Stehman  my  son,  (the  defendant)  the  mansion 
house  and  place  adjoining  Bare  and  others,  containing  about  two 
hundred  acres  more  or  less  in  fee.  Tobias  to  grant  a  water  right  to 
the  mill  as  far  as  it  runs  through  his  lands  and  pay  certain  legacies. 
To  my  four  daughters,  two  hundred  acres  of  land  to  be  equally  divi- 
ded among  them.  The  testator  next  devises  the  property  in  dispute 
as  follows.  "  To  my  widow  Catharine,  I  give  the  new  stone  dwell- 
ing house  and  ten  acres  of  land,  and  the  mill  and  ninety  acres  of 
land  along  the  left  side  of  the  road  from  the  mill  to  the  big  lane,  all 
the  utensils,  the  mill  dam,  &c.  during  her  life.  The  mill,  lands  and 
house  bequeathed  to  my  widow  after  her  death  to  go  to  the  male 
heirs  of  my  son  Tobias  in  fee,  if  any  he  gets,  and  for  want  of  male 
heirs  it  shall  go  to  the  males  of  John  in  fee,  and  to  be  valued  by  five 
men  at  a  valuation  to  be  fixed  either  by  self  hereafter,  but  if  not  done 
to  be  valued  by  five  men,  in  parcels,  or  whole>  among  them.  The 


May  1833.]  OF  PENNSYLVANIA.  467 

[Stchman  and  others  v.  Stehman.] 

mill,  houses,  and  lands  of  one  hundred  acres,  are  to  be  parted  and 
valued  after  the  death  of  the  widow,  by  five  men,  &c.  but  if  no 
grandchildren,  it  shall  go  to  all  my  children  and  parted  and  apprais- 
ed among  them."  He  further  devised  that  John's  widow  should 
keep  possession  of  the  one  hundred  and  thirty-three  acres  of  land 
bequeathed  to  her  children,  until  her  death,  marriage  or  removal 
from  it,  and  thereon  bring  up  and  maintain  them.  The  special  ver- 
dict which  refers  to  the  foregoing  will,  and  contains  the  facts  already 
stated,  further  sets  forth,  that  the  said  testator,  at  the  making  of  the 
said  will,  had  a  wife  named  Catharine,  Tobias,  the  defendant,  his 
son,  and  four  daughters,  Catharine  married  to  Christian  Rohrer,  Eliza- 
beth married  to  Henry  Dietrich,  Margaret  married  to  Daniel  Dietrich, 
and  Feronica  Stehman.  That  the  testator's  son  John  was  born  on 
the  25th  of  December  1783,  and  died  on  the  25th  of  September  1813, 
leaving  a  widow,  who  married  Michor  Brenneman  in  1816,  and  four 
sons  the  plaintiffs  in  this  cause.  That  the  said  John  Stehman  de- 
ceased lived  upon,  worked  and  enjoyed  the  tract  of  land  devised  by 
said  will  to  his  widow,  from  his  marriage  on  the  day  of 
1805,  until  his  death  ;  and  his  widow  and  children  lived  on  and  en- 
joyed it  till  the  making  of  his  father's  will. 

That  the  said  John  Stehman,  the  son,  occupied  and  enjoyed  the 
two  hundred  acres  devised  by  said  will  to  his  sisters,  from  his  mar- 
riage in  1805  until  his  death.  That  the  widow  of  the  testator  died 
the  4th  of  January  1815,  when  Tobias  the  son  was  single  and  had 
never  been'  married. 

That  Tobias  the  son  intermarried  with  his  present  wife  the  15th 
of  June  1815,  by  whom  he  has  three  sons  and  one  daughter,  namely 
Tobias,  born  the  4th  of  July  1817;  Henry,  born  the  10th  of  May 
1822  ;  Jacob,  born  the  18th  of  August  1825  ;  and  Martha,  born  the 
26th  of  June  1819. 

That  Tobias  Stehman,  the  son,  was  born  the  24th  of  October  1785, 
and  lived  with  his  father  until  his  father's  death  ;  and  was  a  dutiful, 
active  and  industrious  son,  aiding  and  assisting  his  father  in  carrying 
on  his  farms  and  in  building  the  mansion  house,  mill  and  dam  erect- 
ed on  the  lands  in  dispute,  which  buildings  were  begun  in  the  year 
1808,  and  completed  in  1809  or  1810.  That  John,  the  son,  when 
they  were  pressed  in  the  hauling  for  the  building,  helped  as  other 
neighbours  with  his  team  a  few  days. 

If  the  court  should  be  of  opinion  that,  on  the  true  construction  of 
the  said  will,  connected  with  the  facts  and  circumstances  above 
found,  the  plaintiffs  are  by  law  entitled  to  recover  the  mansion  house, 
mill  and  lands  for  which  this  ejectment  is  brought,  then  judgment 
to  be  entered  for  the  plaintiffs  with  six  cents  damages  and  six  cents 
costs  ;  but  if  the  court  should  be  of  opinion  that,  upon  a  true  construc- 
tion of  the  said  will,  connected  with  the  above  facts  and  circum- 
stances, the  plaintiffs  are  not  entitled  to  recover,  then  judgment  for 
the  defendant  with  six  cents  costs. 


4G8  SUPREME  COURT  [Lancaster, 

[Stchman  and  others  v.  Stehman.] 

Frazer,  for  plaintiff  in  error,  contended,  that  as  John  was  dead  be- 
fore the  testator  made  his  will,  a  fair  construction  of  the  instrument 
would  give  the  lands  devised  to  the  male  heir  Tobias,  the  limitation 
being  "  to  the  male  heirs  of  Tobias  in  fee,  if  any  he  gets."  The  cir- 
cumstances of  the  family  and  the  equality  among  the  grandchildren 
thus  produced,  tend  to  fortify  this  construction.  In  1805  when  John 
was  married,  the  testator  owned  six  hundred  and  thirty-three  acres  of 
land,  from  which  time  for  eight  years  and  a  half  John  was  in  possession 
of  the  two  hundred  acres  devised  by  the  will  to  his  sisters,  and  for  nine 
years  and  two  months  he  and  his  family  occupied  an  additional  tract 
of  one  hundred  and  thirty-three  acres.  These  were  advantages  that 
John  and  his  children  enjoyed  over  the  other  devisees  when  the  will 
was  made.  Tobias,  who  was  of  age  in  1806,  worked  for  his  father 
both  before  and  after  that  period,  till  the  death  of  the  latter,  without 
compensation.  The  rents,  issues  and  profits  of  the  three  hundred 
and  thirty-three  acres  received  by  John  for  eight  or  nine  years,  and 
the  loss  of  Tobias  in  working  for  his  father  after  1806,  were  the 
causes  of  the  testator's  devising  two  hundred  acres  to  him.  This 
devise  to  Tobias  should,  therefore,  be  thrown  out  of  view,  and  it 
should  be  considered  that  John's  children  have  received  one  hundred 
and  thirty-three  acres  of  land  under  the  will,  whilst  the  children  of 
Tobias  will  receive  but  one  hundred  by  the  construction  we  contend 
for.  Mr  Frazer  here  went  into  a  calculation  to  show  that  the  pro- 
ceeds of  the  land  received  by  John,  with  the  devise  to  his  children, 
placed  him  and  them  in  a  better  situation  than  Tobias  an'd  his  chil- 
dren. He  further  contended,  that  the  testator  never  contemplated 
limiting  the  time  of  Tobias's  having  children  to  the  death  of  the 
widow,  who  was  a  very  old  woman,  and  lived  but  six  weeks  after 
her  husband  ;  more  especially,  as  Tobias  was  unmarried  when  the 
will  was  made.  The  language  of  the  will  is,  after  her  death  ;  it  is 
not  said  if  Tobias  have  no  male  heirs  at  her  death,  or  when  she  dies. 
It  was  a  life  estate  to  the  widow,  with  an  executory  devise  over  upon 
a  condition,  which  might  be  performed  at  any  time  during  the  life  of 
Tobias ;  and  until  his  death,  or  the  birth  of  a  male  heir,  the  fee  was 
in  abeyance.  A  limitation  over  after  a  freehold  estate  that  is  not 
concurrent  with  the  freehold  estate,  such  limitation  will  take  ef- 
fect as  an  executory  devise,  if  it  be  within  a  time  that  does  not  pro- 
duce a  perpetuity  ;  2  Fearne  on  Dev.  (by  Powell)  21.  Here  a  freehold 
estate  has  been  created,  but  the  limitation  over  is  to  go  upon  the 
contingency  of  having  male  heirs  ;  the  fee,  therefore,  would  rest  in 
the  heirs  at  law  until  the  happening  of  the  contingency — the  birth  of 
children  of  Tobias.  The  first  taker  has  only  the  use  of  the  estate, 
pending  the  contingency  mentioned,  which  must  happen  within  the 
time  limited.  4  Kent's  Com.  264,  265.  When  no  person  in  esse  in 
whom  the  fee  can  vest,  it  is  in  abeyance.  2  Tucker's  Black.  107. 
Where  a  future  estate  is  devised  upon  a  contingency,  until  that  con- 
tingency happen,  the  fee  simple  descends  to  the  heir  at  law.  Ibid. 


May  1833.]  OF  PENNSYLVANIA.  469 

[Stehman  and  others  v.  Stebman.] 

173.    As  to  the  construction  of  the  will,  he  cited,  3Com.  Dig.  448,  JV*. 
16,  tit.  Devise  ;  7  Sac.  M.  341,  F.  tit.  Will 

Rogers,  for  defendant  in  error. 

A  remainder  is  a  remnant  of  an  estate  in  lands  or  tenements,  ex- 
pectant in  a  particular  estate,  and  created  at  the  same  time  with  it. 
Remainders  are  vested  or  contingent.     Fearne  says,  there  are  four 
kinds  of  contingent  remainders.     Fearne  3,  4,  5,  6,  7.     More  properly 
reducible  to  two  kinds — to  an  uncertain  person,  and  upon  an  uncertain 
event :  they  are  so  treated  by  Blackstone,  and  adopted  by  Chancellor 
Kent.     4  Kenfs  Com.     The  definition  of  an  executory  devise  by  Black- 
stone  is  incorrect,  it  is. that  of  a  contingent  remainder.     See  Fearne's 
definition.  2  Fearne  1,  2,  3,  (298),  (299).  It  follows,  if  the  same  estate 
that  is  created  by  devise  could  be  created  by  deed  or  common  law  con- 
veyance, it  is  not  an  executory  devise,  but  a  contingent  remainder. 
The  great  difference  between  the  two  is,  that  a  contingent  remainder 
can  be  barred  by  a  fine  levied,  or  common  recovery  suffered  by  the 
tenant  for  life.     An  estate  limited  on  any  event  cannot  take  effect  as 
an  executory  devise  when  there  is  a  particular  estate  of  freehold  capa- 
ble of  supporting  it ;  it  is  a  contingent  remainder.    2  Fearne  3,  (299), 
et  seq.     And  again,  in  same  book  496  (418),  whenever  a  contingent 
limitation  is  preceded  by  a  freehold  capable  of  supporting  it,  it  is  con- 
strued a  contingent  remainder,  and  not  an  executory  devise.     In 
Purefoy  v.  Rogers,  Lord  Hale  says,  where  a  contingency  is  limited  to 
depend  upon  an  estate  of  freehold  which  is  capable  of  supporting  a 
remainder,  it  shall  never  be  construed  to  be  an  executory  devise,  but 
a  contingent  remainder.     2  Saunders  381   to  388,  note  9.     The 
same  principle  is  recognized  in  Doe   v.   Morgan,  3  Term  Rep.  765  ; 
Goodtitle  v.  Billington,  2  Doug.  758  ;  and  by  Chief  Justice  Tilghman 
in  Dunwoodie  v.  Reed,  3  Serg.  fy  Rawle  441.    It  follows,  that  where  a 
life  estate  is  created  in  one  person,  and  a  limitation  over,  or  a  contingency 
to  another,  the  contingent  limitation  is  not  an  executory  devise,  but 
a  contingent  remainder  ;  and  the  rule  holds  good  in  all  cases  when 
the  estate  for  life  goes  into  operation.     Events  that  take  place  pre- 
vious to  the  death  of  the  testator  (as  the  death  of  the  tenant  of  the 
particular  estate)  may  alter  a  contingent  remainder  into  an  executory 
devise.     This  is  from  the  necessity  of  the  case,  otherwise  the  devise 
would  fail  altogether ;  ut  res  magis  valeat  quam  pereat.     2  Fearne 
494, 495,  496,  (418),  (419).    But  events  happening  subsequent  to  the 
death  of  the  devisor  cannot  have  this  effect,  and  therefore  held,  that 
"  where  a  freehold  has  once  vested,  it  seems  no  subsequent  accident 
will  make  a  contingent  remainder  enure  as  an  executory  devise."     2 
Fearne  498,  (420),  (421)  ;  1  Roberts  on  Wills  478,  and  cases  there 
referred  to ;  Doe  v.  Morgan,  3  Term  Rep.  766  ;  Carlyle  v.  Carman,  3 
Rawle  491.     In  this  case,  had  the  widow  died  before  the  testator,  the 
contingent  remainder  would  have  been  changed  into  an  executory 
devise,  and  then  Tobias's  sons  would  have  taken  the  estate  ;  but  the 
freehold  vested  in  the  widow,  and  the  limitation  over  was  a  contingent 


470  SUPREME  COURT  [Lancaster, 

[Stchman  and  others  v.  Stchman.] 

remainder.  On  the  death  of  the  widow,  4th  January  1815,  Tobias 
had  no  male  heirs,  and  as  the  remainder  could  not  vest  it  was  gone, 
and  the  devise  over  to  John's  sons  took  effect.  When  was  the  fee 
simple  to  pass?  Jit  the  death  of  the  widow.  This  appears  fully  from 
the  will.  Clearly  the  testator  contemplated  a  state  of  the  parties  at 
the  death  of  the  widow,  not  at  Tobias's  death.  The  estate  was  or- 
dered to  be  parted  and  divided  at  the  death  of  the  widow,  among  the 
grandchildren,  if  they  were  alive  at  the  time  ;  if  dead,  then  among 
the  heirs  at  law.  Yet,  according  to  the  argument  urged,  if  there 
had  been  no  grandchildren  at  the  widow's  death,  the  estate  could 
not  be  parted  among  the  heirs  at  law,  but  must  remain  in  abeyance, 
until  after  possibility  of  issue  extinct  of  Tobias.  The  fee  was  in- 
tended at  the  death  of  the  widow  to  vest  in  some  one,  in  Tobias's 
sons  if  he  had  any,  if  not,  in  John's  sons.  These  limitations  then  are 
contingentremainders  in  fee,  depending  on  an  uncertain  event.  The 
words  used,  "  heirs  male,"  are  words  of  purchase,  descriptive  of  the 
parties  to  take.  No  estate  was  created  in  Tobias ;  of  course  the  sons 
would  take  nothing  by  descent.  The  rule  in  Shelly's  case  is,  there- 
fore, inapplicable.  See  .Archer's  Case,  2  Coke's  Rep.  66 ;  1  Rob.  on 
Wills  466,  note.  It  is  a  special  description  of  the  devisees,  and  comes 
within  Dunwoodie  v.  Reed,  3  Serg.  fy  Raiele  451.  It  is  contended 
that  there  is  an  estate  tail  male  in  Tobias  by  implication.  Estates 
by  implication  arise  in  two  ways.  1 .  By  express  words  when  there 
is  a  devise  to  the  party  :  as  an  estate  to  A  and  his  heirs,  but  if  he  die 
without  issue  of  his  body  then  to  B,  is  an  estate  tail  by  implication  in 
A.  2.  By  force  of  implication  without  express  words  of  devise  to 
the  party  himself,  upon  the  principle  of  giving  effect  to  the  intention 
of  the  testator.  Here  no  necessity  for  implication,  because  John's 
sons  could  have  taken  at  the  death  of  the  widow,  and  no  implication 
can  arise  in  violation  of  the  testator's  intention.  The  devises  over 
were  contingencies  with  a  double  aspect.  The  case  of  Loddington 
v.  Keim,  1  Salk.  224 ;  Ld.  Raym.  203.  They  are  contemporary 
remainders,  not  expectant  one  after  another  ;  the  limitations  depend 
upon  the  event  of  the  birth  of  a  son  by  Tobias  during  the  life  of  the 
widow.  They  are  not  dependent  contingent  remainders  and  to  take 
effect  in  succession,  but  merely  the  substitution  of  one  contingent  re- 
mainder for  another.  18  Vin.  Jib.  402,  title  Remainder.  2  Doug. 
505,  note ;  4  Kent  200,  201  ;  2  Doug.  758 ;  1  Doug.  264 ;  Good- 
wright  v.  Dunbar,  2  Black.  Rep.  777 ;  Doe  v.  Holme,  3  Serg.  fy 
Rawle  451,  452.  The  distinction  between  a  fee  to  succeed  a  fee 
and  a  collateral  fee  is,  whether  the  first  estate  vests  or  not.  If  it 
does,  the  second  estate  is  void,  because  there  can  be  no  limitation 
after  a  prior  vested  fee  simple  ;  but  if  the  first  estate  never  vests,  and 
it  cannot  take  effect  at  the  time  when  it  ought  to  vest  by  the  hap- 
pening of  the  contingency,  the  second  estate  takes  its  place  and  vests 
when  the  first  limitation  should  have  vested.  4  Kent's  Com.  200, 
201  ;  3  Serg.  #  Rawle  441 .  The  estate  in  fee,  therefore,  becoming 


May  1833.]  OF  PENNSYLVANIA.  471 

[Stehman  and  others  v.  Stehman.] 

vested  in  John's  sons,  all  other  limitations  were  void.     2  Fearne  420 
to  440. 

Jenkins,  on  same  side. 

It  is  better  that  the  law  should  be  fixed  and  certain,  than  that  it 
should  be  made  to  bend  to  cases  of  supposed  hardship.  This  is  a 
plain  case  of  two  concurrent  contingent  remainders  in  fee,  and  is 
more  so  than  the  case  of  Dunwoodie  v.  Reed,  where  the  court  de- 
cided the  remainders  to  be  contingent  and  good.  The  male  heirs 
of  Tobias  take  by  purchase  and  not  by  descent — they  are  described  ; 
besides  which  the  testator  recognized  Tobias  as  living,  which  in  the 
case  just  referred  to  was  held  to  make  a  distinction.  It  is  evident 
the  testator  did  not  intend  Tobias  to  take  any  estate.  Whenever 
a  devise  is  made  to  the  "male  heirs"  of  a  person  who  is  living,  such 
words  are  words  of  description,  and  the  male  heirs  take  by  purchase 
and  not  by  descent ;  4  Kent's  Com.  220.  No  estate  by  implication 
can  arise,  for  there  is  a  freehold  to  support  the  remainder.  Tobias 
was  amply  provided  for  by  the  devisor  in  his  will,  who,  as  if  to  make 
it  clear  that  Tobias  should  have  no  estate  in  the  land  in  dispute,  re- 
quired him  to  convey  a  water  right  to  the  mill  which  forms  a  part 
of  the  property  covered  by  the  devise  to  widow  and  his  "heirs 
male"  or  for  want  of  them  John's.  It  is  an  axiom  that  where  there 
is  a  particular  estate  the  limitation  over  is  never  an  executory  de- 
vise, but  a  contingent  remainder;  1  Fearne  401,  550,  554;  with 
this  single  exception,  where  the  devisee  of  the  particular  estate  dies 
in  the  lifetime  of  the  testator.  Were  the  intention  of  the  devisor 
in  conflict  with  this  rule  it  could  not  prevail,  but  it  is  manifestly  in 
accordance  with  it ;  2  Saunders  388,  A,  G ;  2  Fearne  10  (495)  ;  3 
Rawle.  Here  the  particular  estate  had  vested  in  the  widow ;  the 
limitations  over  were  consequently  contingent  remainders,  and  must 
vest  at  the  determination  of  the  particular  estate  or  never  vest  at  all. 
Tobias  having  no  "  male  heirs"  at  the  widow's  death  the  remainder 
as  to  them  was  gone.  A  remainder  to  B's  eldest  son  then  unborn, 
after  the  determination  of  A's  life  estate,  is  absolutely  gone  if  A 
die  before  B  has  a  son  ;  2  Bl.  Com.  1 69.  So  strict  is  this  rule,  that 
if  the  child  were  in  ventre  samere,  and  born  after  the  determination 
of  the  particular  estate,  the  remainder  could  not  vest.  Tobias  hav- 
ing no  male  heirs,  the  remainder  vested  in  the  sons  of  John.  Two 
or  more  concurrent  remainders  in  fee  simple  may  be  limited  over, 
though  one  only  can  take  effect,  so  that  when  the  male  heirs  of 
Tobias  have  failed,  those  of  John  are  substituted  ;  2  W.  Black.  Rep. 
777 ;  Douglass  753 ;  Dunwoodie  v.  Reed,  3  Serg.  fy  Rawle  438. 
The  difficulty  in  this  last  case  was,  whether  the  first  remainder  was 
vested  or  contingent ;  here  there  is  no  doubt  it  is  contingent.  It  is 
apparent  then  that  the  limitation  over  to  Tobias's  children  is  a  con- 
tingent remainder  and  not  an  executory  devise,  and  that  it  fell 
through  for  want  of  male  heirs  at  the  death  of  the  widow,  upon  the 
plain  rule  that  a  remainder  must  vest  at  the  determination  of  the 


472  SUPREME  COURT  [Lancaster, 

[Stehman  and  others  v.  Stehman.] 

particular  estate  or  eo  instanti  it  determines.  The  remainder  to 
John's  children  is  also  contingent,  and  rested  on  the  chance  of  a 
failure  of  "  male  heirs"  of  Tobias.  If  there  were  none  at  the  death 
of  the  widow,  then  this  second  was  substituted  for  the  first  remain- 
der, as  effectually  as  if  the  testator  had  said  in  so  many  words  there 
should  be  a  substitution.  The  estate  therefore  goes  to  John's  chil- 
dren, and  that  too  in  accordance  with  the  intention  of  the  testator, 
which  was  that  the  grandchildren  living  at  (he  widow's  death 
should  take;  but  if  there  were  no  grandchildren  living  at  that  time 
then  it  was  to  go  to  the  testator's  own  children. . 

Hopkins,  in  reply. 

Every  will  is  to  be  construed  according  to  the  intentions  of  the 
testator,  and  if  that  be  apparent,  courts  will  carry  it  into  effect,  if  not 
contrary  to  the  rules  of  law.     It  is  certain  a  preference  is  given  by 
the  will  to  the  male  heirs  of  Tobias  over  the  male  heirs  of  John ; 
these  latter  could  not  take  until  Tobias's  heirs  were  extinct,  and  then, 
and  not  till  then,  was  the  estate  to  go  over.     We  say  not  till  then, 
for  it  is  manifest  that  the  limitation  to  the  "  male  heirs  of  Tobias,  if 
any  he  gets,"  is  not  confined  in  point  of  time  to  the  death  of  the  widow, 
but  is  coextensive  with  the  life  of  Tobias,  and  a  son  born  ten  years 
after  is  as  fair  a  subject  of  the  testator's  bounty  as  one  born  before 
the  widow's  death.     The  devisor  could  not  have  intended  to  limit 
the  time  to  the  life  of  his  widow  who  was  an  old  woman.     The  con- 
dition attached  required  time  for  its  performance  ;  and  the  life  of  the 
son,  not  the  death  of  the  widow  was  its  limit.     To  say  that  Tobias's 
children  shall  not  take,  would  be  contrary  to  the  intention  expressed. 
If  Tobias  had  had  sons  before  and  after  the  death  of  the  widow,  all 
would  have  come  in  equally,  although  the  estate  in  the  first  instance 
vested  in  those  living  at  the  widow's  death.     The  whole  issue  male 
of  Tobias  is  meant,  and  the  devise  would  be  open  to  let  in  each  sub- 
sequent son  born  after  the  remainder  vested.     After  the  death  of  the 
widow,  and  until  Tobias  had  male  issue,  there  would  be  an  intestacy; 
after  their  birth  they  would  take  the  estate  as  the  chief  objects  of 
the  testator's  bounty.     This  may  be  done  by  an  executory  devise  if 
within  a  time  to  avoid  a  perpetuity.     Fearne  21.     The  limitation, 
"  after  the  death  of  the  widow,  to  the  male  issue  of  Tobias,  if  any  he 
gets,"  is  an  executory  devise.     The  ulterior  limitation  has  no  con- 
nexion with  the  point  of  time  when  the  particular  estate  determines, 
which  is  manifest  from  the  condition,  that  John's  children  are  not  to 
take  but  for  want  of  male  heirs  of  Tobias.     It  amounts  to  this ;  an 
estate  to  the  widow  for  life,  and  if,  after  her  death,  Tobias  should 
have  any  children,  the  estate  in  fee  simple  to  go  to  them,  but  in  de- 
fault of  male  issue  on  his  part,  then  to  John's  children.     The  limita- 
tion to  the  children  of  John  is  void,  being  an  attempt  to  limit  a  fee, 
upon  a  fee  which  cannot  be  done.     No  remainder  can  be  limited 
after  a  grant  in  fee  simple.     2  Black.   Com.  164;  Fearne  8;  Coke 
Lit.  18  a.     A  contingent  fee  absorbs  the  estate  as  much  as  a  vested 


May  1833.]  OF  PENNSYLVANIA.  473 

[Stehman  and  others  v.  Stehman.] 

fee,  because  it  runs  to  perpetuity.  Coke  Lit.  18  a.  The  words  of 
the  will  are  not  at  the  death,  but  after  the  death  of  the  widow  ;  it 
directs  the  parting  of  the  mill,  houses,  &c.  after  that  event.  To 
carry  into  effect  the  general  intention  of  the  testator,  this  may  be 
construed  to  be  an  estate  in  tail  male  to  Tobias.  He  was  the  stock 
from  whom  the  whole  would  pass ;  it  is  to  go  to  all  his  heirs  male  ; 
and  he  may  fairly  be  said  to  have  an  estate  tail  by  implication. 
The  expression  "  male  heirs"  brings  them  within  the  letter  of  the 
statute  de  donis,  and  they  fall  under  the  rule  in  Shelly's  case ;  they 
are  heirs  and  not  purchasers.  In  Robinson  v.  Robinson,  I  Burrowes 
38,  to  effectuate  the  general  intention  of  the  testator,  an  estate  tail 
was  implied  against  the  express  words  of  the  will.  Here  an  impli- 
cation may  be  made  without  interference  with  express  words,  Tobias 
being  the  stock  from  whom  the  male  heirs  are  to  issue.  Pebis  v. 
Mitford,  I  Ventris  372,  is  the  case  of  an  estate  by  implication.  It  is 
done  to  save  the  estate  and  carry  into  effect  the  intention  of  the 
party,  and  courts  are  astute  for  these  purposes.  King  v.  Milling,  1 
Ventris  225.  The  last  son  of  Tobias  being  as  much  an  object  of  the 
testator's  bounty  as  the  first,  the  remainder  by  implication  vests  in 
Tobias.  2Levinz58;  Lessee  of  Haines  v.  Witmer,  2  Yeates  401.  In 
Walters  v.  Drew,  a  son  by  a  mere  recital  was  permitted  to  take  by 
implication,  and  so  prevent  the  estate  from  going  over.  A  devise 
was,  "  if  A  die  without  issue  the  estate  to  go  to  B,"  and  A  took  an 
estate  by  implication.  Cases  temp.  Hardwicke  258  ;  Fearne  300.  By 
giving  an  estate  tail  to  Tobias,  the  intention  of  the  testator  is  pre- 
served, and  the  estate  is  kept  in  the  line  of  Tobias  in  preference  to 
that  of  John. 

The  opinion  of  the  Court  was  delivered  by 

GIBSON,  C.  J. — This  is  a  question  depending  on  intention  rather 
than  on  any  controverted  rule  of  law,  and  one  without  any  ap- 
parent difficulty.  The  plaintiffs  insist  that  these  limitations  pre- 
sent a  case  of  concurrent  remainders  dependent  on  a  contingency 
with  a  double  aspect :  while  the  defendant  insists  that  the  general 
and  paramount  intent  was  to  secure  the  estate  to  the  children  of 
Tobias  at  all  events,  and  without  regard  to  the  time  of  their  birth ; 
that  to  effectuate  this  intent,  it  is  necessary  either  to  imply  the  exist- 
ence of  an  estate  in  tail  male  in  Tobias  himself,  or  to  sustain  the 
limitation  to  his  children  as  an  executory  devise,  supposing  the  es- 
tate to  have  descended  at  the  death  of  the  widow  to  the  testator's 
right  heirs,  in  order  to  await  the  expected  contingency  which  was  to 
happen,  if  at  all,  within  the  lifetime  of  Tobias  and  the  usual  period 
of  gestation  afterwards. 

Granting  that  subordinate  objects  must  yield  to  the  general  intent, 
and  that  to  effect  it  an  estate  may  be  enlarged,  restricted  or  implied, 
yet  it  is  evident  that  to  strain  the  limitation  to  the  children  of  Tobias 
so  as  to  give  their  father  an  estate  tail,  would  dislocate  every  joint 
and  articulation  of  what  seems  to  have  been  the  general  and  para- 

3K 


474  SUPREME  COURT  [Lancaster, 

[Stehman  and  others  v.  Stehman.] 

mount  design.  An  adequate  provision  had  been  made  for  Tobias,  it 
is  to  be  presumed,  in  the  devise  to  him  of  the  mansion-house  and 
farm  though  burthened  with  a  pecuniary  charge ;  and  the  object  to 
be  accomplished  by  the  limitation  in  question,  was  evidently  to  se- 
cure the  land  in  contest  to  his  children  or  the  children  of  John,  with- 
out subjecting  it  to  his  debts,  or  exposing  it  to  the  accidents  that 
might  befall  it  as  his  property.  That  the  precaution  taken  to  effect 
this  might  have  been  eluded,  had  there  been  an  estate  tail  in  him, 
by  turning  it  into  a  fee,  is  too  obvious  to  need  remark.  Without 
having  children  of  his  own,  he  could  by  the  same  means  have  dis- 
appointed another  principal  object  of  the  testator  in  the  further  limi- 
tation to  the  children  of  John,  who  were  intended  to  take  certainly  in 
any  other  event  than  the  existence  of  children  born  to  Tobias  him- 
self. The  object  was  not  so  much  to  vest  the  estate  in  these  children 
at  all  events,  as  to  protect  it  from  the  acts  or  disposition  of  their  father. 
What  if  Tobias  had  suffered  a  common  recovery,  and  the  present 
were  a  contest  between  the  plaintiffs  and  a  purchaser  under  a  judg- 
ment against  him,  or,  to  make  the  case  more  glaring,  between  such 
a  purchaser  and  his  own  children  ?  The  construction  contended  for, 
fatal  as  it  must  have  proved  to  the  testator's  whole  plan,  would  have 
been  thought  a  monstrous  one.  But  his  children  were  directed  in 
express  terms  to  take  a  fee ;  which  would  have  been  inconsistent 
with  the  derivation  of  an  estate  tail  from  him.  To  imply  an  estate 
in  him,  then,  that  would  be  subversive  of  the  leading  objects  of  the 
will,  could  be  justified  on  no  principle  of  construction.  So  that  the 
question  is  whether  the  limitation  to  his  children  can  be  supported 
as  an  executory  devise;  and  the  decision  of  it  must  be  governed  by 
the  testator's  intent  in  respect  to  the  time  of  its  vesting. 

If  it  be  found  that  the  estate  was  to  go  over  at  the  death  of  the 
widow,  to  whom  an  estate  of  freehold  was  given,  we  shall  have  one 
of  the  plainest  cases  in  the  world,  of  concurrent  remainders  limited 
to  take  effect  on  the  happening  of  a  contingency  with  a  double  as- 
pect— much  more  so  than  that  presented  by  the  limitations  in  Dun- 
woodie  v.  Reed.  The  devise  over  is  so  expressed  in  this  will  as  to 
indicate  what  has  been  supposed  an  apparent  intent  that  it  should 
take  effect  after  and  not  at  the  death  of  the  widow — a  difference  of 
little  account  in  common  parlance,  and  absolutely  worthless  in  the 
expression  of  an  intention  accidentally  suffered  to  rest  in  the  loose 
memoranda  of  a  scrivener,  intended  at  the  time  to  be  but  the  material 
of  a  more  precise  and  formal  declaration  of  the  testator's  will.  Were 
it  important  to  ascertain  the  exact  sense  in  which  this  word  "  after" 
was  used  by  the  scrivener,  it  might  be  done  by  adverting  to  the 
clause  in  which  the  testator  directs  the  other  land  devised  to  the 
children  of  John  to  be  valued  "  after"  the  death  of  their  mother,  to 
whom  it  was  given  for  their  support  during  her  life  by  way  of  excep- 
tion out  of  the  fee  ;  and  there  it  was  used  incontrovertibly  to  denote 
the  very  point  of  time  when  her  interest  should  cease.  It  is  suppos- 
ed, however,  that  as  the  testator's  widow  followed  him  in  little  more 


May  1833.]  OP  PENNSYLVANIA.  475 

[Stehman  and  others  v.  Stehman.] 

than  a  month  from  the  date  of  the  will,  he  could  scarce  have  sup- 
posed it  probable  that  Tobias  would  marry  and  procreate  within  the 
apparently  short  compass  of  her  life  ;  and  that  he  never  could  have 
meditated  a  disposition  which,  according  to  the  plaintiffs'  interpreta- 
tion of  it,  would,  on  any  calculation  of  the  chances,  almost  certainly 
prove  abortive.  We  are  left  without  information,  by  the  verdict,  of 
the  widow's  constitution  and  age  ;  but  the  testator  has  nowhere  inti- 
mated that  the  probable  duration  of  her  life  was,  in  his  opinion,  such 
as  to  preclude  a  reasonable  expectation  of  children  from  Tobias  be- 
fore its  termination.  The  estate  was  to  be  taken  by  the  children  at 
a  valuation  of  it  to  be  made  by  the  testator,  or  men  appointed  by  him ; 
and  if  the  latter,  he  could  not  have  supposed  it  probable  that  all  the 
men  would  survive  Tobias,  without  which  the  purpose  to  be  effected 
by  their  appointment  would  have  been  frustrated.  If  it  be  said 
that  he  contemplated  a  valuation  to  be  made  presently,  the  remark 
is  open  to  this  objection  that,  familiar  as  he  must  have  been 
with  the  changes  in  the  price  of  land  that  are  perpetually  taking 
place,  he  would  scarce  have  expected  it  to  be  a  just  or  reasonable 
one  at  the  period  of  his  son's  death.  It  would,  therefore,  seem  fair  to 
conclude,  that  the  making  of  this  valuation,  and  the  consequent 
vesting  of  the  successful  limitation  over,  were  coupled  in  his  mind 
with  the  death  of  the  widow.  But  the  consequence  of  postponing 
them  till  the  possibility  of  children  by  Tobias  should  have  become 
extinct,  would  be  inconsistent  with  any  reasonable  presumption  of 
intent  in  another  view.  No  presumption  of  an  intent  to  die  intestate 
as  to  any  part  of  the  estate,  is  to  be  made,  where  the  words  of  the 
testator  will  carry  the  whole  ;  and  certainly  no  such  intent  is  appa- 
rent here.  Yet,  according  to  the  hypothesis  of  the  defendant,  the 
estate  descended  to  the  testator's  right  heirs  at  the  death  of  the 
widow,  and  was  partable  during  the  interval  between  that  event  and 
the  happening  of  the  contingency,  as  in  the  case  of  a  common  intes- 
tacy, by  the  orphan's  court.  Can  it  be  supposed  that  such  a  parti- 
tion was  thought  of  1  Had  a  temporary  descent  been  contemplated, 
a  temporary  valuation  would  doubtless  have  been  directed,  and  to  be 
made  by  the  men  who,  according  to  the  defendant's  construction, 
were  to  appraise  the  portions  of  the  children  at  the  death  of  Tobias 
or  the  sooner  happening  of  the  contingency.  But  putting  all  this 
aside,  the  inflexible  rule  which  demands  that  no  limitation  be  deemed 
an  executory  devise  if  it  may  by  any  practicable  construction  be  sus- 
tained as  a  contingent  remainder,  overbears  all  implications  of  an  in- 
tention inconsistent  with  it,  and  is  decisive  of  the  question.  This,  too, 
for  the  all-sufficient  reason  that  these  executory  devises,  being  incon- 
sistent with  the  policy  of  the  common  law,  which,  on  account  of  its 
abhorrence  of  estates  commencing  in  futuro,  requires  all  the  precedent 
parts  of  the  fee  to  pass  out  of  the  grantor  at  the  same  instant,  are  barely 
tolerated,  and  only  in  favour  of  the  explicit  declaration  of  one  who 
may  have  been  compelled  to  dispose  of  his  estate  when  unassisted  by 
counsel.  They  are  therefore  to  be  sustained  but  in  clear  cases  of 


476  SUPREME  COURT.  [Lancaster. 

[Stehman  and  others  v.  Stchman.] 

absolute  necessity  ;  and  nothing  remains  but  to  inquire  whether  the 
present  is  such.  In  the  first  place,  then,  there  was  a  sufficient  par- 
ticular estate  of  freehold  in  the  widow  ;  next  there  were  limitations 
after  her  death,  to  the  male  heirs  of  Tobias,  if  he  should  have  any, 
in  fee  ;  or  in  default  of  such  heirs,  to  the  males  of  John  ;  and  finally 
these  limitations  were  concurrent  and  in  defeasance  of  each  other. 
What  more  was  necessary  to  give  effect  to  all  the  practicable  parts 
of  the  testator's  plan  ?  As  contingent  limitations  of  a  remainder, 
they  would  have  been  effectual  to  preserve  the  estate  for  all  the  chil- 
dren of  Tobias,  had  any  been  born  in  time  to  take  ;  for  their  remain- 
der having  vested  in  some  of  them,  would  undoubtedly  have  opened 
to  let  in  the  rest  though  subsequently  born.  But  in  the  succession 
of  the  events  that  have  taken  place,  the  limitation  to  them  having 
been  passed  by,  is  gone  for  ever ;  and  the  estate  is  irrevocably  vested 
in  those  who  answered  the  description  in  the  posterior  limitations  at 
the  death  of  the  particular  tenant. 
Judgment  affirmed. 


CASES 


IN 


THE   SUPREME   COURT 


OF 


PENNSYLVANIA. 


MIDDLE  DISTRICT,  JUNE  TERM  1833. 


Huston  against  Foster. 

In  order  to  the  admission  in  evidence  of  a  deed  from  the  county  commissioners, 
it  is  not  necessary  to  show  all  the  pre-requisites  of  a  sale  made  for  taxes  by  the 
treasurer  to  the  commissioners :  it  is  sufficient  if  it  appear  that  the  grantor  was  the 
treasurer,  and  that  he  did  sell  and  convey  to  the  commissioners. 

It  is  not  a  good  objection  to  a  deed  from  the  commissioners  that  the  sale  was  made 
on  a  day  to  which  it  had  been  adjourned.  Nor  is  it  a  good  objection,  that  the  deed 
was  under  the  private  seal  of  the  commissioners  and  not  their  corporate  seal. 

ERROR  to  the  common  pleas  of  Huntingdon  county. 

This  was  an  ejectment  by  William  Foster  against  Matthew  Huston, 
for  four  hundred  and  four  acres  of  land.  Matthew  Huston,  the  de- 
fendant, was  the  tenant  of  Mrs  Cadwallader,  in  whom  the  original 
title  had  been.  The  plaintiff  proved  that  Samuel  Steel  had  been 
treasurer  of  Huntingdon  county  for  the  year  1820,  and  then  offered 
in  evidence  a  deed  from  him  to  the  commissioners  for  the  land  in 
dispute,  sold  in  that  year  for  taxes.  It  was  objected  to : 

1.  Because,  under  the  acts  of  assembly,  it  required  a  specific 
case  before  they  could  purchase,  and  it  lies  upon  them  to  show,  that 
that  case  had  occurred,  before  the  deed  could  be  received  in  evidence. 

2.  Because,  where  a   deed    is  made  by  the    commissioners,  it 
must  be  supported  by  proof  of  all  the  pre-requisites  of  the  act  of 
assembly ;  it  is  not  embraced  by'the  terms  of  the  act  of  1815  ;  that 
act  only  applies  to  sales  by  the  treasurer. 


478  SUPREME  COURT  [Sunbury, 

[Huston  v.  Foster.] 

3.  The  sale  was  not  made  on  the  day  fixed  by  the  act  of  assem- 
bly for  that  purpose. 

4.  The    deed  was  not  sealed  with  the  corporate  seal  of   the 
county  commissioners. 

The  proof  was  then  made  that  the  sale  was  adjourned  from  the 
day  appointed  by  law,  to  the  day  on  which  it  was  sold.  The  deed 
was  under  the  private  seals  of  the  commissioners. 

The  objections  were  overruled,  and  exception  taken  by  defendant. 
The  court  instructed  the  jury,  that  the  plaintiff  was  entitled  to  re- 
cover, who  found  a  verdict  accordingly. 

The  admission  of  the  evidence  and  instruction  of  the  court  were 
assigned  for  error. 

Pottery  for  plaintiff  in  error,  referred  to  the  act  of  13th  of  March 
1815,  sect.  2,  4  and  6,  and  16  Serg.  fy  Rawle  351. 

A.  P.  Wilson  and  Miles,  contra,  cited,  2  Yeates  331  ;  3  Yeates  186. 

The  opinion  of  the  Court  was  delivered  by 

GIBSON,  C.  J. — By  the  common  law,  which  views  every  invasion 
of  the  sanctity  of  property  with  peculiar  jealousy,  an  authority  to 
divest  the  title  of  another  is  required  to  be  strictly  pursued,  and  as 
the  maxim  omnia  rite  preswnuntur  is  appropriate  but  to  judicial  pro- 
ceedings, no  intendment  in  respect  to  the  exercise  of  it  is  to  be  made 
in  favour  of  what  does  not  appear ;  so  that  every  act  whose  per- 
formance is  made  a  condition  of  the  divesture,  must  be  shown  by 
proof.  It  is  this  principle  which  requires  the  assignees  of  a  bank- 
rupt, in  an  action  against  a  third  person,  to  show  the  commission 
and  the  regularity  of  the  proceedings  under  it  up  to  the  assignment 
by  the  commissioners  :  and  it  was  a  misapprehension  of,  perhaps  its 
existence — certainly  of  its  nature  and  extent,  which  baffled  the  at- 
tempts of  the  legislature  to  remedy  the  inconvenience  of  its  applica- 
tion to  sales  of  unseated  land  for  taxes.  The  object  was  not  attained 
till  the  act  of  1815  dispensed  with  the  principle  altogether :  the  cura- 
tive provision  of  which,  however,  has  been  said  in  the  argument  to 
be  adapted  only  to  sales  by  the  treasurer  and  not  to  those  by  the  com- 
missioners, having  bought  in  for  the  benefit  of  the  county.  The  re- 
mark is  undoubtedly  just ;  and  why  1  Because  those  sales  were 
never  in  need  of  it ;  the  common  law  principle,  which  it  was  intend- 
ed to  subvert,  being  inapplicable  to  a  disposition  by  the  owner  himself. 
Here  it  is  admitted  that  the  title  had  passed  from  the  original  pro- 
prietor to  the  county,  which  was  disposing,  by  the  instrumentality  of 
its  officers,  of  its  own  land  ;  so  that  in  an  action  between  its  vendee 
and  a  wrong-doer,  every  intendment  is  to  be  made  in  support  of  the 
sale.  The  act,  indeed,  points  out  a  mode  by  which  an  indefeasible 
title  may  undoubtedly  be  vested  in  the  purchaser ;  but  I  am  unpre- 
pared to  say  that  its  provisions  in  this  particular  are  not  barely  di- 
rectory ;  or  that  the  admitted  want  of  an  intermediate  link  would  be 


June  1833.]  OF  PENNSYLVANIA.  479 

[Huston  v.  Foster.] 

fatal  to  the  title  between  the  purchaser,  and  any  one  but  the  county 
or  a  person  standing  in  privity  to  it.  But  were  it  otherwise,  no  such 
want  of  a  link  is  shown  or  admitted  here,  the  reliance  of  the  defend- 
ant being  on  the  absence  of  proof  by  the  other  side.  As  to  the  offer 
to  redeem,  or  rather  to  appropriate  money  paid  on  general  account  to 
the  taxes  due  on  this  particular  tract,  that  could  not  have  been  done 
without  the  consent  of  the  former  owner ;  and  taking  for  granted 
that  M'Cahen  was  authorized  to  act  for  Mrs  Cadwallader,  yet 
when  he  called  on  the  commissioners  to  do  so,  the  day  of  redemption 
had  gone  by,  and  the  title  of  the  county  had  become  indefeasible. 

The  objection  to  the  deed  for  want  of  the  corporate  seal,  rests  on 
different  ground.  Originally  a  deed  under  the  common  seal  of 
county  commissioners  was  utterly  void  ;  though  it  appears,  by  the 
Lessee  of  Watt  v.  Gillmore,  2  Yeates  330 ;  Lessee  of  Simon  v.  Brown, 
3  Yeates  186,  and  M'Cay  v.  Dickinson  College,  5  Serg.  fy  Rawle 
254  ;  that  such  a  seal  had  been  sometimes  used.  How  far  its  use 
has  since  been  sanctioned  it  might  not  perhaps  be  necessary  to  de- 
termine. But  we  find  the  legislature  declaring,  in  the  act  of  the 
llth  of  April  1799,  that  "  the  commissioners  of  each  county  within 
the  commonwealth  shall  have  and  use  one  common  seal  for  the  pur- 
pose of  sealing  their  proceedings ;  and  copies  of  the  same,  when  signed 
and  sealed  by  the  commissioners,  and  attested  by  their  clerk,  shall 
be  good  evidence  of  such  proceedings  on  the  trial  of  any  cause  in 
any  of  the  courts  of  this  commonwealth."  This  provision  seems  to 
relate  rather  to  the  record  of  transactions  in  the  office,  that  may  re- 
quire an  act  of  authentication,  than  to  a  single  determinate  act  in 
pais,  which  going  into  the  hands  of  the  grantee,  is  susceptible  of 
authentication  as  other  conveyances  are.  Certainly  the  mode  of 
authenticating  these  deeds  is  not  so  conclusively  directed  by  statute, 
as  to  exclude  the  mode  of  execution  authorized  by  the  common  law, 
before  county  commissioners  were  recognized  as  a  quasi  corporation. 
Every  consideration  of  policy  requires  a  deed  thus  executed  to  be 
sustained  ;  nor  does  the  recognition  of  it  imply  that  the  use  of  the 
common  seal  in  similar  cases  is  necessarily  to  be  held  bad.  Many 
titles  might  be  shaken  by  it ;  and  it  certainly  would  not  conduce  to 
the  repose  of  the  community,  to  hold  the  commissioners  strictly  to 
the  observance  of  technicalities.  Even  where  they  have  affixed 
their  common  seal  to  their  individual  signatures,  it  would  require  no 
great  stress  of  ingenuity  to  take  it  separately  for  the  seal  of  each, 
adopted  for  the  occasion.  However  that  might  be,  the  presence  of 
the  private  seals  of  the  commissioners  puts  the  validity  of  the  instru- 
ment beyond  the  reach  of  dispute,  and  authorized  the  unqualified 
direction  given  by  the  judge  that  the  plaintiff  was  entitled  to  recover. 
,  Judgment  affirmed. 


480  SUPREME  COURT  [Swnbwy, 


Crawford  against  The  Commonwealth. 

i 

The  same  security  which  is  afforded  by  an  administration  bond  to  the  heirs  of  an 
intestate  results  to  the  commonwealth  in  the  case  of  the  death  of  an  intestate  without 
heirs  or  known  kindred. 

In  case  of  an  intestacy  without  heirs  or  known  kindred,  the  commonwealth  can 
not  maintain  a  scirc  facias  upon  a  judgment  obtained  against  the  administrators  on 
their  administration  bond  to  recover  the  personal  estate,  without  first  having  estab- 
lished her  right  by  an  inquest  confirmed  by  the  court. 

ERROR  to  the  common  pleas  of  Mifflin  county. 

This  was  a  scire  facias  upon  a  judgment  obtained  upon  an  ad- 
ministration bond,  in  which  "  The  Commonwealth,  for  escheat  on 
information  of  Daniel  Rodebaugh"  was  plaintiff,  and  "  David  Craw- 
ford and  Joseph  Douglass  surviving  obligors  in  a  bond  with  James 
Mackey  and  William  Beale,  Esq."  were  defendants  ;  on  the  trial  of 
which  the  following  facts  appeared  in  evidence. 

Henry  Doran,  late  of  Mifflin  county,  died  intestate,  and  as  was 
alleged  without  any  known  kindred.  Upon  his  death  letters  of  ad- 
ministration were  granted  by  the  register  of  the  county  to  David 
Crawford  one  of  the  plaintiffs  in  error,  and  James  Mackey  since  de- 
ceased, who  gave  an  administration  bond  in  the  usual  form,  with 
Joseph  Douglass  the  other  plaintiff  in  error,  and  William  Beale,  as 
their  sureties.  No  administration  account  being  settled  in  con- 
formity to  the  condition  of  this  bond,  a  suit  was  afterwards  brought 
upon  it  against  David  Crawford  and  Joseph  Douglass  ;  James  Mackey 
and  William  Beale  having  both  died  in  the  mean  time ;  to  January 
term  1823,  in  the  court  of  common  pleas  of  Mifflin  county,  in  which 
a  cautionary  judgment  was  obtained  against  them  for  the  amount 
of  the  penalty  of  the  bond. 

On  the  9th  of  August  1821,  the  auditor-general  of  the  state,  upon 
the  information  of  Daniel  Rodebaugli,  according  to  the  directions  of 
the  first  section  of  the  act  of  assembly,  entitled  "  a  supplement  to  an 
act  entitled  an  act  to  declare  and  regulate  escheats,"  passed  the  2d 
of  April  1821,  appointed  James  M'Dowell,  Esq.  of  Mifflin  county, 
his  deputy,  who  issued  his  precept  to  the  sheriff  of  the  county,  com- 
manding him  to  summon  and  empannel  twenty-four  good  and  law- 
ful men  of  the  same  county,  to  come  before  the  said  deputy  at  the 
place  and  on  the  day  therein  mentioned  ;  to  inquire  whether  the  said 
Henry  Doran  had  died  without  heirs  or  known  kindred  ;  and  whether 
he,  at  the  time  of  his  death,  was  seised  or  possessed  of  any,  and 
what  estate,  real  or  personal  in  the  same  county  ;  and  also  in  whose 
hands  or  possession  the  same  was.  In  pursuance  of  this  precept  an 
inquisition  was  taken  on  the  28th  of  December  1821,  which  was 
certified,  and  transmitted  by  the  deputy  of  the  auditor-general  into 


June  1833.]  OF  PENNSYLVANIA.  481 

[Crawford  v.  The  Commonwealth.] 

the  office  of  the  prothonotary  of  the  common  pleas  of  Mifflin  county. 
The  inquest  found,  that  Henry  Doran  died  on  the  25th  of  November 
1815,  intestate,  and  without  heirs  or  any  known  kindred  ;  and  that 
he  was  possessed  at  the  time  of  his  death  of  personal  estate  in  Mifflin 
county  of  the  value  of  1146  dollars  and  99  cents,  which  hades- 
cheated  to  the  commonwealth  of  Pennsylvania;  and  after  enume- 
rating or  specifying  of  what  it  consisted,  they  also  found  that  it  had 
come  into  the  hands  of  David  Crawford  and  James  Mackey  adminis- 
trators of  Henry  Doran,  and  had  been  eloigned  by  them. 

At  the  time  of  taking  this  inquisition  James  Mackey  was  dead ;  and 
Mary  Mackey,  his  widow,  who  was  the  executrix  of  his  last  will, 
joined  David  Crawford  in  giving  a  bond  with  security  to  the  com- 
monwealth, to  appear  at  the  next  court  of  common  pleas  to  be  held 
for  the  county  of  Mifflin,  to  traverse  the  inquisition,  and  in  case  the 
same  should  be  confirmed,  to  render  to  the  commonwealth  the  estate 
found  to  have  been  in  their  hands  or  that  of  David  Crawford  and 
James  Mackey.  A  certificate  to  this  effect  was  given,  and  indorsed 
by  the  deputy  of  the  auditor-general  upon  the  inquisition  when  it 
was  transmitted  by  him  into  the  prothonotary's  office,  and  is  in  the 
following  words  :  "  To  Robert  Craig,  Esq.  prothonotary,  court  of 
common  pleas  of  Mifflin  county  ;  I  do  hereby  certify  that  the  above 
inquisition,  in  pursuance  of  the  annexed  writ,  was  held,  signed  and 
sealed  as  set  forth  in  the  same,  and  that  Mary  Mackey  and  David 
Crawford  have  given  bond  to  traverse  the  inquisition.  James  McDowell, 
deputy  auditor-general." 

The  following  entries  were  made  in  the  docket  of  the  prothono- 
tary of  the  court  of  common  pleas  of  Mifflin  county,  to  wit : 

"  The  Commonwealth  of  Pennsylvania  v.  Mary  Mackey,  Executrix 
of  James  Mackey  deceased,  January  term  1822.  No.  150.  Writ  of 
inquisition  of  escheat  on  the  estate  of  Henry  Doran  deceased,  April 
term  1822.  Bond  of  defendant  filed,  and  the  bail  excepted  to. 
Rule  to  justify  by  the  court. 

"  Commonwealth  of  Pennsylvania  v.  David  Crawford,  No.  151,  same 
term.  Writ  of  inquisition  of  escheat  on  the  estate  of  Henry  Doran 
deceased.  Bond  of  defendant  filed,  and  the  bail  excepted  to.  Rule 
to  justify  by  the  court." 

Here  all  further  proceeding  upon  this  inquisition  closed. 

The  counsel  for  defendants  requested  the  court  to  charge  the  jury 
on  the  following  points. 

1.  That  no  damages  can  be  recovered  in  this  suit  in  the  name  of 
the  Commonwealth  ex  relatione  Daniel  Rodebaugh  ;  as  neither  the  in- 
former nor  the  commonwealth,  in  case  of  escheated  articles,  have  any 
remedy  on  the  administration  bond  against  the  administrators  or 
their  bail ;  but  must  pursue  the  method  pointed  out  by  the  act  of 
assembly  relative  to  escheats,  to  obtain  possession  of  the  escheated 
property. 

2.  That  in  this  case  no  writ  of  seizure  issued  on  the  inquisition  of 
escheats,  to  seize  the  property  of  Doran  in  the  hands  of  Cratcford  and 

3L 


482  SUPREME  COURT  [Sunbury, 

[Crawford  v.  The  Commonwealth.] 

Mackey,  or  to  seize  their  own  property,  as  directed  by  the  act  of  as- 
sembly ;  no  damages  can  be  recovered  against  Joseph  Douglass,  the 
bail  in  this  case. 

3.  That  by  return  of  the  inquisition  and  the  power  given  the  com- 
monwealth to  issue  a  writ  of  seizure,  to  take  into  the  custody  of  the 
law  the  property  of  Doran,  or  the  property  of  Crawford  and  JV/acfcey, 
it  was  imperative  on  the  commonwealth  to  do  so,  and  the  neglect  to 
issue  this  writ  of  seizure  discharged  Joseph  Douglass,  the  bail. 

4.  That  the  proceedings  in  suits  No.  150  and  No.   151  of  January 
term  1822,  preclude  the  maintenance  of  this  suit  until  those  proceed- 
ings are  finally  disposed  of. 

5.  That  neither  David  Crawford  nor  Mary  Mackey  had  legal  no- 
tice of  the  time  or  place  of  holding  the  inquisition  of  escheat  :  the 
plaintiff  cannot  recover. 

6.  That  the  finding  of  the  inquisition  is  uncertain,  and  such  a  find- 
ing as  no  legal  process  could  be  issued  upon  it. 

7.  That  the  finding  of  the  inquest  was,  that  the  property  was 
eloigned  ;  but  they  do  not  find  by  whom  it  was  eloigued. 

8.  That  the  scire  facias  in  this  case  must  issue  at  the  instance 
of  some   person  aggrieved,   and   that  Daniel  Rodebaugh  has  not 
so  conducted  the  proceedings  in  this  case  as  to  enable  him  to  main- 
tain this  suit. 

1.  To  the  first  point  the  court  answers,  that  it  is  their  opinion  the 
bond  given  by  the  administrators  and  their  bail  does  stand  for  the  use 
of  all  persons  interested  in  the  personal  property  to  be  administered ; 
that  the  bond  covers  the  right  of  the  commonwealth  when  personal 
property  has  escheated,  and  when  it  has  been  converted  into  money 
by  administrators ;  and  that  when  the  inquest  was  found,  and  the 
property  declared  escheated,  the  commonwealth,  on  the  relation  of 
the  informant,  might  proceed  to  recover  the  escheated  personal  pro- 
perty which  was  received  by  the  administrators  in  due  administration 
in  this  way. 

2  and  3.  That  in  this  case  a  writ  of  seizure  was  not  necessary  ; 
nor  can  we  instruct  you  that  Douglass  was  discharged,  because  that 
writ  did  not  issue  ;  nor  was  it  imperative  on  the  commonwealth  to 
issue  a  writ  of  seizure  when  the  property  was  legally  in  the  possess- 
ion of  Mackey  and  Crawford  in  the  course  of  administration. 

4.  We  do  not  think  the  proceedings  on  suits  No.  150  and"  No. 
151  of  January  term  1822,  preclude  the  maintaining  of  this  suit. 

5.  The  very  suits,  No.  150  and  No.  151,  given  in  evidence  by  de- 
fendant, show,  that  they  had  notice  of  the  inquest.     The  escheator- 
general  swears  he  believes  Crawford  was  present ;  we  have  said  and 
offered  to  admit  evidence  by  defendant  of  any  payment  that  may 
have  been  made  by  the  administrators  ;  nay,  we  instruct  you  to  allow 
for  administering  the  estate,  although  no  inventory  has  ever  been 
filed,  nor  administration  account  settled. 

6.  We  think  the  finding  sufficiently  certain  to  call  upon  the  de- 
fendant to  show  what  became  of  the  estate. 


June  1833.]  OF  PENNSYLVANIA.  483 

[Crawford  v.  The  Commpnwealth.] 

7.  The  finding  was,  that  the  sum  of  1146  dollars  and  99  cents 
was  in  thehandsof  the  administrators,  and  has  been  by  them  eloigned. 
This  we  think  is  finding  by  whom  eloigned. 

8.  We  tfrink  the  scire  facias  well  issued.     Rodebaugh  might  or 
might  not  be  named  in  this  case  ;  this  suit  we  instruct  you  can  be 
maintained.     The  money  goes  into  the  state  treasury.     Rodebaugk, 
if  he  receives  any  of  it,  gives  bond  for  it  agreeably  to  law.     We  can- 
not instruct  you  as  required. 

This  opinion  of  the  court  was  assigned  for  error. 

Parker  and  Potter,  for  plaintiffs  in  error. 
McDowell,  for  defendant  in  error. 

The  opinion  of  the  Court  was  delivered  by 

KENNEDY,  J. — On  the  trial  of  this  cause  in  the  court  below,  sev- 
eral bills  of  exception  were  taken  by  the  counsel  for  the  plaintiffs  in 
error,  to  the  opinion  of  the  court,  admitting  evidence  offered  by  the 
defendant  in  error  and  objected  to  by  the  plaintiffs  in  error,  which 
have  been  assigned  among  other  matters  for  error  here.  We  how- 
ever perceive  no  error  in  them.  The  court  below  was  so  obviously 
right  in  admitting  the  evidence,  that  it  requires  no  reasoning  in  order 
to  make  it  more  palpable. 

The  other  matters  involved  in  the  errors  assigned,  which  seem  to 
be  worthy  of  notice,  may  be  reduced  to  two  questions. 

First.  Are  the  commonwealth  and  her  informer  entitled  to  maintain 
a  writ  of  scire  facias  upon  a  judgment  had  upon  an  administration 
bond,  to  recover  the  value  of  the  personal  estate  of  the  intestate, 
which  came  into  the  hands  and  possession  of  the  administrators,  and 
to  which  she  has  a  right  by  escheat? 

Second.  If  she  has  a  right  to  maintain  a  writ  of  scire  facias  for 
such  purpose,  can  she  do  it  without  first  having  her  right  established 
by  means  of  an  inquest;  and  if  after  that,  a  bond  and  security  be  given 
to  her  by  the  administrators  to  traverse  the  inquisition,  can  she  main- 
tain such  suit  before  that  the  inquisition  shall  be  confirmed'? 

In  respect  to  the  first  question,  it  may  be  premised,  that  it  has 
never  been  questioned,  but  that  the  next  of  kin  to  the  intestate  might 
maintain  an  action  on  the  administration  bond  against  the  adminis- 
trators and  their  sureties,  to  recover  their  respective  proportions  or 
purparts  of  the  intestate's  personal  estate,  which  came  into  the  hands 
of  the  administrators.  Although  it  was  at  one  time  held  in  England 
that  the  creditors  of  the  intestate  could  not  sue  and  recover  upon  the 
administration  bond  given  there,  of  which  ours  is  a  copy,  even  in  the 
case  of  a  devastavit  by  the  administrator;  yet  it  was  ever  considered, 
that  the  bond  was  given  especially,  and  at  this  time  exclusively  for 
the  benefit  of  the  next  of  kin  or  those  entitled  to  have  the  personal 
estate  of  the  intestate,  which  remained  after  paying  his  debts  and 
the  expenses  of  the  administration.  It  has  however  been  adjudged 
since,  that  in  England,  as  also  in  this  state,  that  a  creditor,  in  case 


484  SUPREME  COURT  [Smbury, 

[Crawford  v.  The  Commonwealth.] 

of  his  being  unable  to  collect  his  debt  of  the  administrator  on  ac- 
count of  his  having  committed  a  devastavit,  may  have  an  action 
upon  the  administration  bond  against  the  sureties  by  way  of  redress. 
This  being  the  settled  law,  where  there  are  next  of  kii»,  it  must  be 
obvious  to  every  one,  that  where  there  are  none,  that  the  common- 
wealth comes  in  lieu  of  them;  and  why  shall  she  not  be  entitled  to 
the  same  security  and  the  same  remedy,  having  asserted  and  estab- 
lished her  right  to  the  estate  by  escheat,  in  the  manner  prescribed 
by  law,  that  are  given  to  the  next  of  kin  1  I  must  confess  that  I  am 
unable  to  perceive  any.  The  commonwealth  in  such  case  may  well 
be  considered  the  ultima  hares,  and  as  succeeding  to  all  the  rights 
and  all  the  remedies  of  the  heirs  or  next  of  kin  in  ordinary  cases. 
The  application  of  this  principle  may  perhaps  appear  more  striking  in 
the  case  of  a  bastard's  dying  intestate,  than  that  of  any  other.  Ac- 
cording to  the  common  law,  which  remains  unaltered  in  this  parti- 
cular by  statute,  he  has  no  heir  or  next  of  kin.  He  is  nullius  filius, 
and  in  England  the  king  is  considered  to  be  his  heir,  ultimus  hares. 
By  the  civil  law  a  bastard  was  deemed  filius  populi;  and  here  I  see 
no  good  reason  why  he  may  not  be  denominated  filius  reipubliccz,  and 
upon  his  dying  intestate,  the  commonwealth  be  looked  upon  as  his 
next  of  kin,  under  our  acts  of  assembly  regulating  and  declaring  in 
what  cases  the  estates  of  intestates  shall  escheat.  But  it  has  been 
argued  that  as  the  act  of  the  29th  of  September  1787,  entitled  "an 
act  to  declare  and  regulate  escheats,"  directs,  by  the  fourth  section 
thereof,  a  course  of  proceeding  against  the  party  himself  directly,  in 
whose  hands  or  possession  the  estate  shall  be  found,  that  that  is  the 
only  remedy  which  the  commonwealth  has  or  can  resort  to.  This 
section  declares  that  immediately  "upon  the  finding  of  the  inquisi- 
tion, the  escheator-general  [now  the  auditor-general  or  his  deputy, 
by  the  act  of  the  2d  of  April  1821,  sec.  1]  shall  issue  his  writ, 
directed  to  the  sheriff  or  coroner  of  the  county,  as  the  case  shall  re- 
quire, commanding  him  to  seize,  attach  and  secure  the  goods  and 
chattels  so  found  to  be  escheated  as  aforesaid,  in  whose  hands  soever 
the  same  shall  be  found;  or  if  it  be  found  by  the  said  inquest  that 
the  said  goods  and  chatters  be  eloigned,  then  to  seize  and  attach  so 
much  of  the  goods  and  chattels  of  the  person  or  persons  who  shall 
have  eloigned  the  same,  as  shall  be  equal  in  value  to  the  goods  and 
chattels  which  he  eloigned,  unless  the  person  or  persons  in  whose 
hands  or  possession  such  goods  and  chattels  be  found,  give  bond  to 
the  commonwealth,  with  sufficient  security,  to  appear  at  the  next 
supreme  court  [but,  since  the  act  of  the  2d  of  April  1821,  at  the  next 
court  of  common  pleas]  thereafter,  to  traverse  the  said  inquisition, 
and  likewise,  in  case  the  same  be  confirmed,  to  render  to  the  com- 
monwealth the  same  goods  and  chattels  found  to  be  in  his  or  her 
hands;  which  writ,  so  to  be  issued,  shall  be  duly  returned  to  the 
escheator  [now  auditor]  general,  together  with  an  inventory  and 
appraisement  of  the  goods  and  chattels,  if  any,  which  he  seized  and 
attached  by  virtue  thereof;  and  the  said  sheriff  or  coroner  shall  there- 


June  1833.]  OF  PENNSYLVANIA.  485 

[Crawford  v.  The  Commonwealth.] 

upon  sell  the  same  goods  and  chattels  at  public  auction,  after  ten 
days  public  notice  of  such  sale,  and  shall,  without  delay,  pay  over 
the  moneys  therefrom  arising,  to  the  treasurer  of  the  commonwealth, 
&c."  In  answer  to  this,  it  is  sufficient  to  observe,  that  although  a 
very  summary  remedy  is  given  by  this  act  to  the  commonwealth  to 
obtain  possession  of  the  personal  estate  of  which  the  intestate  died 
possessed,  or  otherwise  an  adequate  compensation  for  it  in  case  it 
should  be  eloigned,  yet  there  are  no  words  in  the  act  which  seem  to 
indicate  the  slightest  intention,  upon  the  part  of  the  legislature,  to 
confine  the  commonwealth  to  that  course  of  proceeding  alone,  or  to 
prevent  her  from  pursuing  any  other  that  another  party  interested 
in  the  estate,  and  having  a  right  to  it,  would  be  entitled  to  select  and 
adopt.  The  commonwealth  being  once  invested  with  the  right  to 
the  estate,  the  law  will  afford  her,  as  incident  to  such  right,  every 
remedy  provided  generally  for  the  recovery  of  it;  whether  it  be  a 
remedy  existing  at  common  law,  or  be  given  by  statute;  and  the 
remedy  furnished  to  the  commonwealth  in  this  particular  case  by  the 
act  of  assembly,  must  be  considered  cumulative,  which  she  may 
pursue,  in  proper  cases,  as  often  as  it  is  likely  to  prove  effectual,  at 
pleasure. 

I  come  now  to  the  consideration  of  the  second  question.  It  ap- 
pears to  me,  that  wherever  the  commonwealth  intends  to  assert  her 
right  by  escheat  to  the  estate  of  an  intestate,  that  it  must  be  done 
by  means  of  an  inquest,  as  directed  by  the  acts  of  1787  and  1821  al- 
ready referred  to,  and  in  part  recited  ;  and  that  until  her  right  shall 
be  established  by  the  report  of  the  inquest  in  her  favour,  she  can 
maintain  no  action,  nor  cause  any  writ  to  be  issued,  for  the  recovery 
of  the  possession  of  the  property.  But  having  established  her  right 
of  property  by  an  inquest  of  office  found  in  her  favour,  she  may  have 
all  the  personal  property  secured,  if  not  eloigned,  or,  if  found  by  the 
inquest  to  be  eloigned,  have  other  property  of  the  party  who  eloigned 
it,  of  equal  value,  taken  in  place  thereof,  by  the  sheriff  or  coroner  of 
the  county,  under  a  writ  to  him  directed  for  that  purpose,  from  the 
deputy  of  the  auditor-general,  according  to  the  acts  of  assembly  cited 
above  ;  or  she  may  commence  and  prosecute,  for  the  recovery  of  the 
same,  any  action  that  the  next  of  kin,  had  there  been  any,  would 
have  been  entitled  to  support.  Indeed,  I  think  it  is  very  manifest, 
from  the  provisions  of  these  acts,  that  the  legislature,  instead  of  in- 
tending to  restrict  and  limit  the  commonwealth,  in  her  course  of  pro- 
ceeding to  obtain  possession  of  the  goods  and  chattels  belonging  to, 
or  to  recover  the  debts  owing  to  an  intestate  who  died  without  heirs 
or  any  known  kindred,  within  what  is  allowed  by  law  to  heirs  or 
next  of  kin  where  there  are  such,  that  they  intended  to  extend  it 
beyond  any  thing  that  these  latter  can  claim ;  for  by  the  eighth 
section  of  the  act  of  1787  it  is  expressly  declared,  that  after  it  shall 
have  been  found  by  the  inquest,  that  the  intestate  died  without  heirs 
or  any  known  kindred,  the  commonwealth  shall  be  entitled  to  re- 
cover for  her  use,  "  by  information  of  debt  or  action  in  the  nature  of 


486  SUPREME  COURT  [Sunbwy* 

[Crawford  v.  The  Commonwealth.] 

trover  nnd  conversion,  or  upon  the  case,  for  money  had  and  received, 
as  the  case  may  require,"  any  part  of  the  personal  estate  of  such  in- 
testate or  moneys  owing  to  him,  and  not  mentioned  or  included  in 
the  inquisition,  in  the  hands  or  possession  of  or  owing  by  any  person 
dwelling  within  the  state.  Thus  enabling  the  commonwealth,  after 
the  inquest  of  office  found  in  her  favour,  to  demand  and  recover  the 
goods  and  chattels  belonging  to  the  intestate  at  thcHime  of  his  de- 
cease, from  those  in  whose  possession  they  may  be,  and  the  debts 
or  moneys  owing  to  the  deceased  from  the  debtors,  whoever  they  may 
be;  while  the  next  of  kin,  when  there  are  any,  are  confined,  and 
compelled  to  claim  every  thing  of  the  kind,  through  and  by  means 
of  the  administrators,  without  whom  the  personal  estate  cannot  be 
collected  and  secured. 

Although  the  commonwealth,  after  an  inquisition  held  establish- 
ing her  right  by  escheat  to  the  personal  property  of  an  intestate, 
enumerating  it  specifically,  and  finding  it  to  be  in  the  hands  of  ad- 
ministrators, within  the  year  after  the  decease  of  the  intestate,  would 
seem,  according  to  the  let.ter  of  the  act  of  1787,  to  have  a  right  to 
seize  and  take  the  property  immediately  out  of  the  hands  and  pos- 
session of  the  administrators,  even  before  the  expiration  of  the  year, 
the  time  that  is  allowed  by  subsequent  acts  of  assembly,  for  ascer- 
taining the  creditors  of  the  intestate,  if  there  should  be  any,  the 
amount  of  their  claims,  and  for  paying  them  off;  yet  I  am  inclined 
to  think,  that  in  such  case,  no  writ  for  seizure  of  the  goods  or  pro- 
perty can  be  issued  or  executed  until  after  the  year.  It  is  evident, 
from  the  second  section  of  the  act  of  1787,  which,  among  other 
things,  declares  that  the  "  estate  shall  escheat  to  the  commonwealth, 
subject  to  all  legal  demands  on  the  same,"  that  the  legislature  did  not 
intend  to  preclude  the  creditors  of  the  intestate  from  being  paid  their 
claims  out  of  his  estate  ;  but  as  no  mode  is  provided  by  this  or  any 
of  the  subsequent  acts  on  the  subject  of  escheat,  whereby  creditors 
shall  obtain  payment  of  their  debts  out  of  the  estate  of  the  intestate, 
nor  yet  any  agent  or  officer  of  the  commonwealth  thereby  autho- 
rized to  make  payment  to  them,  of  their  debts,  out  of  the  estate  of 
which  their  debtor  died  seised  or  possessed,  may  it  not  be  fairly  pre- 
sumed, or  inferred,  that  the  legislature  intended  that  this  should  be 
done  by  administrators,  were  there  any  1  otherwise,  to  take  the  estate 
out  of  the  hands  of  the  administrators  before  the  expiration  of  the 
year,  the  time  allowed  in  all  cases  for  paying  the  debts  of  the  de- 
ceased debtor  before  distribution  shall  be  made  amongst  the  next  of 
kin,  might  prevent  creditors  from  receiving  payment  of  their  debts  ; 
and  if  so,  would  certainly  defeat  the  intention  of  the  legislature,  as 
it  appears  to  me  ;  which  was,  that  the  commonwealth  should  only 
be  entitled  to  claim  the  surplus  of  the  intestate's  estate,  which  should 
remain  after  payment  of  all  his  debts.  In  cases,  however,  where  no 
letters  of  administration  have  been  granted  upon  the  estate  of  the 
intestate,  1  do  not  consider  that  the  commonwealth  is  bound,  after 
having  established  her  right  to  the  property  by  the  report  of  an  in- 


June  1833.]  OF  PENNSYLVANIA.  487 

[Crawford  v.  The  Commonwealth.] 

quest,  to  delay  a  moment  in  proceeding  to  seize  upon  and  take  pos- 
session of  it.  For  if  creditors  should  become  embarrassed  in  obtain- 
ing payment  of  their  debts  by  it,  they  must  attribute  it  to  their  own 
negligence,  in  not  having  taken  out  letters  of  administration,  as  they 
had  a  right  to  do,  before  the  commonwealth  had  established  her  right 
to  the  property.  Although  I  incline  to  entertain  this  opinion  at  pre- 
sent, yet  1  do  not  wish  to  be  understood  as  being  entirely  free  from 
doubt  in  regard  to  its  correctness  ;  nor,  that  I  shall  consider  myself 
bound  by  it  hereafter,  in  a  case  where  it  may  become  necessary  to 
decide  the  point ;  for  in  this  case  it  does  not  necessarily  arise,  as 
much  more  than  one  year  elapsed  after  administration  was  taken 
out  upon  the  estate  of  Henry  Doran,  before  the  commonwealth 
moved  at  all  in  the  business.  But  still,  notwithstanding  that  greatly 
more  than  the  year  had  elapsed,  and  that  the  commonwealth  was 
not  prevented,  on  that  ground,  from  proceeding,  upon  the  return  of 
the  inquisition  in  her  favour,  to  issue  a  writ  from  the  deputy  of  the 
auditor-general,  directed  to  the  sheriff,  commanding  him  to  seize  the 
goods  and  chattels  of  the  administrators,  equal,  in  value,  to  the  per- 
sonal estate  of  the  intestate  which  the  inquest  found  came  to  their 
hands  and  had  been  eloigned  by  them,  and  to  dispose  of  them  for 
the  use  of  the  commonwealth,  in  the  manner  prescribed  by  the  act 
of  1787 ;  I  think  that  the  bond  given  by  David  Crawford,  the  sur- 
viving administrator,  and  Mary  tMackey,  the  executrix  of  James 
J]fackey,  the  deceased  administrator,  to  the  commonwealth,  with  se- 
curity, to  traverse  the  inquisition,  arrested  all  further  proceeding  on 
the  part  of  the  commonwealth,  until  the  traverse  thus  taken  was 
finally  disposed  of,  and  the  inquisition  confirmed.  By  this  traverse 
of  the  inquisition,  every  fact  found  by  it  was  denied,  and  put  in  issue  ; 
and  not  merely  the  fact,  as  has  been  alleged,  that  the  administrators 
had  eloigned  the  estate  which  came  into  their  hands,  but  the  fact, 
that  the  intestate  died  without  heirs,  or  any  known  kindred,  as  well 
as  every  other  fact  found  by  the  inquest,  which  was  material  to 
entitle  the  commonwealth  to  the  estate  of  the  intestate,  was  denied, 
and  completely  put  in  issue  by  the  traverse.  The  traverse  of  an  in- 
quisition, ex  m  termini,  is  a  denial  of  all  the  facts  found  by  it.  This 
being  the  case,  it  follows  that  the  presumption  of  right,  on  the  part  of 
the  commonwealth,  which  arose  from  the  finding  of  the  inquest,  was 
repelled  by  the  traverse  ;  and  until  the  inquisition  should  be  con- 
firmed, either  upon  a  trial  of  the  traverse  or  upon  its  being  dismissed 
for  sufficient  cause,  the  right  of  the  commonwealth  to  the  estate  of 
the  intestate  could  not  be  said  to  be  established  ;  nor  do  I  conceive, 
that  according  to  the  terms  of  the  act  of  1787,  that  she  had  any  right 
to  have  a  writ  under  that  act  to  seize  the  property,  or  that  she  could 
maintain  an  action  in  any  form  against  the  administrators  or  their 
sureties,  or  any  other  person  whomsoever,  for  the  estate  of  the  intes- 
tate, or  any  part  of  it,  except  to  prosecute  a  trial  of  the  traverse,  and 
to  have  the  inquisition  confirmed  first. 

It,  however,  has  been  contended,  that  because  an  exception  was 


488  SUPREME  COURT  [Sunbury, 

[Crawford  v.  The  Commonwealth.] 

taken  to  the  sufficiency  of  the  security  given  in  the  bond  for  the  tra- 
verse of  the  inquisition,  it  ought  to  be  considered  as  if  no  traverse 
had  ever  been  taken,  or  existed.  But  it  appears  that  the  bond,  with 
the  security,  was  certified  by  the  deputy  himself  of  the  auditor-ge- 
neral, to  have  been  given  without  any  objection  being  made  by  him 
then  to  the  sufficiency  of  the  security.  This  certificate  was  made 
on  the  back  of  the  inquisition,  and  was  transmitted  with  it  into  the 
prothonotary's  office  by  the  deputy  of  the  auditor-general ;  and  no 
exception  entered  or  taken  to  the  sufficiency  of  the  security,  until 
some  time,  at  least  one  term,  three  months,  afterwards.  During 
this  interim,  there  is  no  pretence  for  saying,  that  the  traverse  was 
not  regularly  and  well  taken  and  entered.  The  administrators  had 
done  all  that  the  act  required,  in  order  to  complete  their  traverse. 
Now  admitting  that  the  exception  to  the  sufficiency  of  the  security 
entered  after  that  the  bond  had  been  so  taken  to  the  commonwealth 
by  the  deputy  of  the  auditor-general,  and  so  certified  by  him  to  the 
prothonotary,  without  any  exception  at  the  time,  was  all  regular ; 
still  the  traverse  must  be  considered  as  still  pending,  until  that  the 
sufficiency  or  insufficiency  of  the  security  was  decided  on  by  the  pro- 
per tribunal,  and  the  traverse  dismissed,  and  the  inquisition  con- 
firmed, for  want  of  sufficient  security ;  or,  otherwise,  the  traverse 
tried,  and  the  inquisition  thereupon  confirmed.  As  I,  then,  consider 
that  the  traverse  was  regularly  and  well  taken  in  this  case,  for  any 
thing  that  appears  to  the  contrary,  and  as  the  inquisition  has  never 
been  confirmed  in  any  way,  the  commonwealth  was  premature  in 
suing  out  the  writ  of  scire  facias  ;  and  cannot  maintain  this  action. 
But  the  court  below  having  given  a  contrary  direction  to  the  jury  on 
this  point,  their  judgment  must,  therefore,  be  reversed.  In  all  other 
respects  or  matters,  I  think,  that  the  direction  of  the  court  below  to 
(he  jury,  and  their  answers  to  the  points  submitted  by  the  counsel 
for  the  plaintiffs  in  error,  were  right. 
The  judgment  is  reversed. 


June  1833.]  OF  PENNSYLVANIA.  489 


Ruth  and  wife  against  Kutz. 

A  general  verdict  for  the  plaintiff  in  an  action  of  slander  is  bad,  when  it  is  upon  a 
declaration  containing  two  counts,  in  one  of  which  the  words  laid  to  have  been  spoken 
are  actionable,  and  in  the  other  not  actionable. 

Such  a  verdict  having  been  rendered  in  the  circuit  court,  and  a  judgment  upon  the 
faultless  count,  the  court  in  bank  set  aside  the  verdict  and  judgment,  and  directed  a 
venire  de  novo  to  issue. 

APPEAL  from  the  circuit  court  of  Northumberland  county. 

This  was  an  action  of  slander  by  Peter  Ruth  and  wife  against  Peter 
Kutz,  in  which  the  declaration  contained  two  counts,  laying  these 
words,  with  the  proper  inuendoes,  to  have  been  spoken  :  "  that  Mrs 
Ruth  one  evening  came  to  his  bedside  in  her  shift  tail,  and  told  him 
she  thought  she  heard  some  one  knock  below,  and  if  one  of  his  boys 
had  not  coughed,  he  did  not  know  what  would  have  happened."  And 
in  the  second  count  these  words:  "that  Peter  Smith  kept  house  with 
a  whore,  and  he  could  prove  that  the  daughter  they  had  was  not  Ruttfs 
child.  Christian  Dunkle  is  her  father,  but  she  laid  it  to  Ruth,  and  that 
Rut h  married  her  ;  and  he  would  be  damned  if  he  could  not  prove  all 
that."  The  jury  found  a  verdict  for  the  plaintiff  for  2000  dollars  da- 
mages ;  and  the  court  directed,  upon  a  motion  in  arrest  of  judgment 
having  been  made,  that  judgment  should  be  entered  upon  the  second 
count.  The  defendant  appealed,  and  that  motion  was  insisted  upon 
in  the  court  in  bank,  and  argued  by 

Greenough,  for  appellant,  who  cited,  1  Bin.  587 ;  Tid.  Prac.  831  ; 
Doug.  378  ;  4  Yeates  442  ;  5  Johns.  Rep.  476  ;  3  Wils.  177. 

Daniel  and  Hepburn,  contra,  cited,  1  Bin.  393  ;  5  Serg.  fy  Rawle 
321  ;  2  Johns.  Rep.  283. 

The  opinion  of  the  Court  was  delivered  by 

GIBSON,  C.  J. — One  of  the  counts  is  incurably  bad;  the  words 
contained  in  it  impute  acts  which  evince  a  libidinous  temperament, 
but  do  not  constitute  an  indictable  offence.  The  defect  was  discover- 
ed too  late  to  have  it  rectified ;  evidence  having  been  given,  and  the 
verdict  recorded  on  all  the  counts ;  consequently  the  rendition  of  the 
judgment  on  the  good  counts  only,  is  not  to  be  sustained.  The  ques- 
tion, therefore,  is,  whether  the  judgment  is  to  be  set  aside  and  finally 
arrested,  in  which  event  the  plaintiffs  would  have  to  begin  again  ;  or 
only  suspended,  in  order  to  give  them  an  opportunity  to  have 
damages  assessed  on  the  good  counts  by  means  of  a  venire  facias  de 
novo.  Formerly  judgment  was  said  to  be  arrested  when  it  was  but 
3  M 


490  SUPREME  COURT  [Swnbury, 

[Ruth  and  wife  v.  Kutz.] 

suspended  for  extrinsic  causes,  by  setting  aside  the  verdict  or  grant- 
ing a  new  trial ;  but  the  term  is  more  recently  applied  with  greater 
accuracy  to  the  perpetual  stay  occasioned  by  a  defect  in  the  record. 
That  the  judgment  may,  strictly  speaking,  be  arrested  in  a  case 
like  the  present,  is  unquestionable,  for  such  has  been  the  course  of 
our  practice  ;  but  that  a  more  beneficial  practice  may  be  adopted 
without  impugning  our  own  decisions  or  the  common  law,  is  equally 
unquestionable.  In  Auger  v.  Wilkins,  I  Barnes  337,  where  entire 
damages  had  been  assessed  for  several  sets  of  scandalous  words, 
some  of  which  were  riot  actionable,  the  plaintiff  had  a  venire  de  novo 
to  sever  his  damages,  according  to  what  was  said  to  be  an  ancient 
rule  of  the  court ;  and  the  same  thing  was  done  in  Smith  v.  Howard, 
Ibid.  340.  Barnes  is  good  authority,  I  believe,  for  points  of  practice, 
though  for  little  beside.  But  these  two  cases  are  taken  for  law  by 
Sergeant  Williams  in  his  note  to  Hambleton  v.  Vere,  2  Saund.  171,  c  ; 
at  least  so  far  as  regards  the  common  pleas,  to  which  he  seems 
to  consider  the  rule  as  peculiar.  That  it  were  so,  would  furnish  no 
objection  to  it  here,  as  our  own  practice  has  been  modelled  principally 
on  the  practice  of  that  court.  But  it  is  certain  that  the  venire  de  novo 
is  a  common  process  in  every  court  for  the  trial  of  causes,  without 
distinction  as  to  the  peculiarities  of  the  forum,  (a)  The  authorities  for 
this  are  arranged  in  a  note  to  Dairies  v.  Pierce,  2  Term  Rep.  126  ;  the 
clear  result  of  which  is,  that  it  is  grantable  :  1.  Where  the  jury  have 
been  improperly  chosen,  or  irregularly  returned ;  2.  Where  the  jury 
have  misconducted  themselves  ;  3.  Where  entire  damages  are  given 
on  several  counts,  including  a  defective  one  ;  4.  Where  an  imperfect 
verdict  is  found  ;  5.  Where  a  demurrer  to  evidence  is  such  that  the 
court  can  not  give  judgment  on  it.  Each  of  these  positions  is  for- 
tified by  an  array  of  authorities  in  the  note  alluded  to,  and  reinforced 
by  a  formidable  train  in  a  note  to  Johnstone  v.  Sutton,  1  Term  Rep. 
528.  The  instances  of  this  process,  scattered  through  the  books, 
show  it  to  have  been  the  ordinary  and  appropriate  remedy  for  almost 
every  species  of  mis-trial ;  and  the  only  doubt  in  respect  to  it  seems 
to  have  been,  not  whether  it  could  be  awarded  below,  but  whether 
it  could  be  awarded,  for  any  other  cause  than  imperfectness  of  the 
verdict,  by  a  court  of  error.  To  us  who  are  in  the  daily  practice  of 
awarding  it  in  error,  this  doubt  seems  to  have  been  a  fastidious  one  ; 
and  perhaps  it  would  at  present  appear  so  in  Westminster  Hall, 
where,  notwithstanding  the  decision  in  Street  v.  Hopkinson,  2  Stra. 
1055,  that  a  court  of  error  can  not  award  it  at  all,  the  practice  has 
been  settled  for  half  a  century  in  accordance  with  our  own.  The 
propriety  of  this  writ,  in  the  cases  already  indicated,  seems  to  be  at 
length  securely  settled  on  the  basis  of  authority  ;  and  as  to  the  fit- 
ness and  justice  of  it,  no  one  can  assign  a  reason  why  a  plaintiff 

(a)  In  Eddmcs  v.  Hopkins,  Doug.  632,  it  seems  to  have  been  considered  also  as  the 
rule  of  the  king's  bench;  and  in  Grant  v.  .'ixtlr,  Doug.  696,  it  was  held  by  all  the 
jud/es  of  that  court  to  be  the  proper  course  on  a  reversal  in  error. 


June  1833.]  OP  PENNSYLVANIA.  491 

[Ruth  and  wife  v.  Kutz.] 

should  be  subjected  to  the  vexation  and  delay  of  anew  action,  when 
his  damages  may  be  assessed  on  the  faultless  counts  in  his  declara- 
tion, with  equal  or  greater  advantage  to  the  defendant  himself,  who 
would  be  compelled  to  bear  his  own  costs,  if  the  judgment  were 
arrested,  and  the  entire  costs  of  a  new  proceeding  in  the  event  of  a 
recovery.  Whether  a  venire  de  novo  would  be  awarded,  if  all  the 
counts  were  faulty  but  in  form,  it  is  unnecessary  to  determine. 
Perhaps  the  authorities  would  not  warrant  it,  though  the  conveni- 
ence  of  it,  and  the  liberality  of  our  practice  in  matters  of  amendment, 
would  plead  strongly  for  it.  In  a  case  like  the  present,  however,  a 
resort  to  the  practice  of  the  English  courts  is  warranted  both  by  rea- 
son and  authority,  and  we  feel  no  hesitation  in  adopting,  or,  to  speak 
more  plainly,  reviving  it. 

Judgment  and  verdict  set  aside  and  venire  de  novo  awarded. 


Mather  against  Clark. 

A  writ  of  scire  facias  upon  a  mortgage  need  not  be  served  upon  the  terre  tenant  of 
the  mortgaged  premises,  to  make  him  a  party  to  the  proceeding.  A  title  by  the  sher- 
iff upon  a  judgment  against  the  mortgagor  alone  is  good. 

In  an  ejectment  against  a  terre  tenant  of  mortgaged  premises  by  the  purchaser  at 
sheriff's  sale,  the  defendant  may  avail  himself  of  any  defence  which  he  might  have 
made  if  he  had  been  a  party  to  the  scire  facias  suit.  But  if  he  had  been  served  with 
notice  of  the  suit  upon  the  mortgage  the  judgment  would  have  been  conclusive  upon 
him  and  his  title. 

ERROR  to  the  common  pleas  of  Bradford  county. 

This  was  an  ejectment  by  John  Mather  against  Benjamin  Clark 
and  terre  tenants  for  a  tract  of  land.  On  the  2d  of  October  1809 
Thomas  Overton  conveyed  the  land  to  Benjamin  Clark  the  defendant ; 
and  afterwards,  on  the  31st  of  October  1809,  he  executed  a  mortgage 
on  the  same  land  to  George  Fox,  Joseph  P.  JVorm  and  Jonathan 
Smith,  to  secure  the  payment  of  2500  dollars.  The  mortgage  was 
recorded  on  the  31st  of  January  1810,  the  conveyance  on  the  3d  of 
September  1810.  The  mortgage  was  sued  by  writ  of  scire  facias  to 
May  term  1825,  by  George  Fox  and  others  against  Thomas  Overton, 
and  judgment  obtained  thereon  ;  upon  which  a  levari  facias  issued  to 
February  term  1826,  and  the  land  was  sold  to  George  Fox,  and  con- 
veyed by  the  sheriff  to  him  ;  he  conveyed  to  Thomas  Ellicott,  who 
conveyed  to  John  Mather,  the  plaintiff  in  this  ejectment. 

The  court  below  instructed  the  jury,  that  "  if  they  believed  that 
Clark,  since  his  purchase  of  the  land  from  Overton  and  taking  a  deed 
which  was  recorded  in  1810,  has  been  in  possession  of  the  land  from 
that  time  to  the  present,  he  would  be  a  terre  tenant  and  entitled  to 
notice  of  the  proceedings  on  the  scire  facias ;  and  his  not  having  been 


492  SUPREME  COURT  [Sunlury, 

[Mather  v.  Clark.] 

made  a  party  to  the  suit,  renders  the  judgment  inoperative  as  it  re- 
gards his  rights." 

This  opinion  was  assigned  for  error. 

Cunningham,  for  plaintiff  in  error. 

E.  Lewis  and  Willetson,  contra,  cited,  4  Bac.  Jib.  tit.  Scire  Facias 
418  ;  Phil.  Ev.  422  ;  16  Serg.  fy  Rawle  432. 

The  opinion  of  the  Court  was  delivered  by 

KENNEDY,  J. — To  prevent  misapprehension  on  the  part  of  the 
jury  it  is  highly  necessary  that  the  court,  in  charging  them  on  any 
point  of  law  at  the  instance  of  either  party,  should  be  careful,  where 
the  facts  out  of  which  the  question  or  point  arises,  are  controverted 
by  the  parties,  not  to  direct  the  jury  on  the  point  of  law  as  if  the  facts 
were  conceded  to  be  as  assumed  or  claimed  by  the  party  at  whose 
request  the  jury  are  so  charged  ;  because  it  must  be  obvious  that  they 
may  be  imposed  on  or  misled  in  regard  to  their  duty,  which  is,  to 
ascertain  first,  and  find  how  the  facts  are.  They  may  suppose  that 
they  are  to  take  from  the  court  not  only  the  law,  but  the  facts  too 
as  they  have  been  assumed  for  the  purpose  of  laying  down  the  law 
to  them.  In  order,  however,  to  avoid  any  such  mistake  or  misap- 
prehension taking  place  with  the  jury,  the  court  ought,  in  charging 
them,  to  refer  distinctly  to  the  controversy  between  the  parties  in 
respect  to  the  facts,  and  to  tell  the  jury  that  if  they  should  find  the 
facts  to  be  as  the  one  party  contends  they  are,  then  the  law  is  so  and 
so ;  but  if  they  should  find  the  facts  to  be  as  the  other  party  claims 
they  are,  then  the  law  is  different ;  and  to  state  to  them  how  it  is,  as 
they  shall  find  the  facts  to  be  in  one  way  or  the  other.  It  is  possible 
that  in  the  present  case  the  president  judge  may  have  made  such 
observations  to  the  jury  in  regard  to  the  contest  between  the  parties, 
about  their  finding  the  facts,  as  was  contended  for  by  the  one  party 
or  the  other,  to  which  his  charge  as  committed  to  writing  has  a  refer- 
ence, so  as  to  have  given  a  different  view  of  the  matter  to  the  jury 
from  what  there  is  great  reason  to  apprehend  they  must  have  re- 
ceived, if  nothing  more  were  said  than  what  is  contained  in  the 
written  charge. 

If  such  further  remarks  were  made,  in  connexion  with  what  has 
been  reduced  to  writing,  so  as  to  have  presented  to  the  jury  an  in- 
telligible and  correct  view  and  application  of  the  law  to  this  part  of 
the  case  between  the  parties,  as  they  should  happen  to  find  the  facts 
to  be  in  the  one  way  or  the  other,  as  claimed  by  either  party  ;  it  is 
to  be  regretted  that  they  were  not  also  committed  to  writing  and 
sent  up  as  part  of  the  charge.  Be  this,  however,  as  it  may,  inas- 
much as  it  does  not  appear  to  have  been  so,  we  can  not  presume  it 
was,  and  must  take  the  charge  as  it  has  been  given  in  writing. 

It  is  easy  to  perceive  from  the  case,  that  there  must  have  been  a 
contest,  on  the  trial  of  the  cause,  between  the  parties,  as  to  the  facts 
to  which  the  charge  is  applicable  :  the  plaintiff  contending  that 


June  1833.]  OF  PENNSYLVANIA.  493 

[Mather  v.  Clark.] 

the  mortgage  from  Thomas  Overtoil  to  George  Fox  and  others, 
although  bearing  a  date  on  its  face  posterior  to  the  date  mentioned 
on  the  face  of  the  deed  of  conveyance  from  Thomas  Overton  to  Ben- 
jamin Clark,  was  in  reality  executed  and  delivered  before  the  execu- 
tion and  delivery  of  the  latter  ;  while  the  defendant  Clark  contended 
that  each  was  executed  and  delivered  on  their  respective  dates.  In 
this  latter  state  of  things  the  charge  of  the  court  would  have  been 
correct ;  but  if  the  facts  of  the  case  were  as  the  plaintiff  contended, 
then  the  charge  was  clearly  erroneous.  The  court  tell  the  jury,  "  if 
they  believe  that  Clark,  since  his  purchase  of  the  land  of  Overton,  and 
taking  a  deed  which  was  recorded  in  1810,  has  been  in  the  possess- 
ion of  the  land  from  that  time  to  the  present,  he  would  be  a  terre 
tenant  and  entitled  to  notice  of  the  scire  facias  proceedings ;  and  his 
not  being  made  a  party  in  that  cause,  renders  the  judgment  inope- 
rative as  regards  his  rights"  Now,  although  Clark  had  been  in  the 
possession  of  the  land  from  the  time  he  actually  got  his  deed  from 
Overton,  and  was  properly  and  technically  terre-tenant  thereof,  yet 
if  the  mortgage  from  Overton  to  Fox  and  others,  which  embraced 
the  same  with  other  land,  was  actually  executed  and  delivered  by 
Overton  to  the  mortgagees  before  Clark's  deed  was  delivered  to  him, 
it  would  most  unquestionably  operate  on  his  right  to  the  laud,  and 
bind  it  as  effectually  as  if  it  had  continued  to  be  the  property  of 
Overton,  the  mortgagor.  The  court,  as  I  conceive,  ought  first  to 
have  submitted  to  the  jury  their  right  to  ascertain  and  to  find  how 
these  facts  were ;  and  only  in  case  they  found  the  mortgage  to  have 
been  delivered  and  executed  after  the  execution  and  delivery  of  the 
deed  to  Clark,  was  it,  that  his  right  to  the  land  could  not  be  affected 
by  the  mortgage  and  the  proceeding  by  scire  facias  upon  it ;  but  if 
they  found  the  facts  otherwise,  then  the  mortgage  bound  the  land, 
and  the  right  of  Clark  to  it  was  affected  by  it  and  the  proceeding 
thereon  by  scire  facias,  whether  he  was  terre  tenant  of  it  or  not,  and 
although  he  had  had  the  possession  of  it  from  the  time  of  his  pur- 
chase without  any  notice  of  the  scire  facias,  unless  he  could  show 
that  the  mortgage  had  been  paid  or  released.  But  I  must  further 
observe,  that  it  appears  to  me  at  least  doubtful,  whether  the  court 
by  their  charge  did  not  intend  to  instruct  the  jury  that  if  they  be- 
lieved that  Clark  had  lived  upon  the  land  from  the  time  of  his  pur- 
chase and  getting  his  deed  for  it  of  Overton,  no  matter  when  that 
was,  he  thereby  became  terre  tenant  of  the  land,  and  his  right  to  it 
therefore  could  not  be  affected  by  the  judgment  and  sale  upon  the 
mortgage,  as  no  notice  of  the  writ  of  scire  facias  sued  out  was  served 
upon  him.  If  this  be  the  meaning  of  the  charge,  it  is  clearly  erro- 
neous ;  for  it  is  not  necessary  in  this  state  to  give  notice  to  the  terre 
tenant  of  the  mortgaged  premises  of  the  suing  out  of  the  writ  of 
scire  facias,  or  to  make  him  a  party  to  the  proceeding  in  any  way,  in 
order  to  make  a  good  and  valid  sale  of  the  land  to  satisfy  the  debt 
or  money  due  upon  the  mortgage.  Such  notice  may  be  given,  and 
I  think  it  commendable  to  do  so,  and  in  some  instances  it  has  been 


494  SUPREME  COURT  [Simbury, 

[Mather  v.  Clark.] 

given ;  still  I  believe  it  has  been  more  frequently  omitted,  at  least  in 
some  parts  of  the  state,  and  has  become  a  practice  too  long  settled 
to  be  overturned  by  a  judicial  decision.  The  only  difference  that  a 
want  of  notice  to  the  terre  tenant  makes  is,  that  he  will  be  permitted 
to  make  any  available  defence  against  the  purchaser  of  the  land  at 
sheriffs  sale,  that  he  might  have  set  up  on  the  trial  of  the  scire  facias 
in  case  it  had  been  served  upon  him ;  see  JVace  v.  Hollenback,  I 
Serg.  <$•  Rawle  548 ;  but  if  it  has  been  served  upon  him  he  can 
make  no  such  defence  against  the  sheriff's  vendee.  Ibid.  540. 
Blythe  v.  M  'Clintock,  7  Serg.  4"  Rawle  341.  But  the  circumstance 
of  his  having  become  a  terre  tenant  of  the  land,  after  the  execution 
of  a  mortgage,  which  was  valid  in  its  original  concoction,  and  has 
been  duly  recorded,  will  form  no  defence  whatever,  either  upon  the 
trial  of  the  scire  facias,  or  that  of  the  ejectment  brought  against  him 
by  the  sheriff's  vendee.  Nothing  short  of  payment  or  a  release  of 
the  mortgage  can  avail  in  such  a  case. 

Believing  that  the  charge  of  the  court  below  was  calculated  to 
mislead  the  jury  as  to  the  law  of  the  case,  I  therefore  think  that 
their  judgment  ought  to  be  reversed. 

Judgment  reversed,  and  a  venire  facias  de  novo  awarded. 


Gulp  against  Fisher. 

A  covenant  by  a  mortgagee  that  he  will  not  proceed  to  collect  the  money  secured 
by  his  mortgage  by  a  sale  of  one  of  several  tracts  of  land  mortgaged,  which  had  been 
separated  and  sold  by  the  mortgagor  to  a  third  pe'rson ,  will  not  release  other  tracts 
from  the  lien  of  the  mortgage,  or  discharge  them  from  liability  to  pay. 

A  formal  releaie  of  one  of  several  tracts  of  land  from  the  lien  of  a  mortgage,  will 
not  discharge  the  other  lands  from  the  incumbrance. 

A  mortgagor,  in  the  possession  of  the  mortgaged  lands,  sold  one  tract,  and  gave  a 
bond  to  the  purchaser  to  indemnify  him  against  the  mortgage ;  the  mortgage  was 
aflerwards  sued,  and  judgment  obtained  against  the  terre  tenant,  without  actual  no- 
tice to  the  mortgagor,  upon  which  the  land  was  levied  and  sold  :  in  an  action  upon 
the  bond  of  indemnity  it  was  held,  that  if  the  mortgagor  had  notice  of  the  suit  upon  the 
mortgage  he  would  have  been  concluded,  and  obliged  to  repay  the  purchase  money 
to  the  plaintiff;  if  he  had  not  notice  of  it,  he  might  make  the  same  defence  in  the 
suit  upon  the  bond,  that  he  might  have  made  upon  that  on  the  mortgage. 

The  possession  of  land  is  equivalent  to  the  interest  upon  the  purchase  money ;  and 
in  an  action  to  recover  back  purchase  money  paid  for  land,  interest  is  recoverable 
from  the  time  of  eviction,  when  that  eviction  proceeds  from  a  prior  incumbrance, 
and  not  paramount  title. 

APPEAL  from  the  circuit  court  of  Northumberland  county. 

In  this  case  Samuel  Gulp  was  plaintiff;  andWUliam  Kasey  adminis- 
trator of  Henry  Fisher,  defendant. 

The  action  is  in  debt  on  a  bond  of  4000  dollars,  dated  the  8th  of 
April  1814,  and  was  given  by  Joseph  Fox  as  principal,  and  Henry  Fisher, 


June  1833.]  OF  PENNSYLVANIA.  495 

[Gulp  v.  Fisher.] 

the  defendant's  intestate,  and  Mia  John  as  sureties,  to  the  plaintiff 
Samuel  Gulp,  and  in  its  terras  is  joint  and  several. 

Jinn  Pemberton,  of  the  city  of  Philadelphia,  sold  and  conveyed  in 
fee  simple  to  Joseph  Fox  two  tracts  of  land  lying  in  Shamokin  town- 
ship in  Northumberland  county,  containing  in  the  whole  six  hun- 
dred and  eleven  acres  and  one  hundred  and  fifty  two  perches,  besides 
allowance  of  six  per  cent  for  roads,  £c.  and  on  the  1st  day  of  May 
1813,  took  a  mortgage  of  Fox  upon  the  land,  to  secure  the  payment 
of  the  purchase  money,  4943  dollars  and  83  cents,  to  be  paid  in  four 
equal  annual  payments,  without  interest.  Joseph  Fox  afterwards 
sold  one  hundred  and  sixty-eight  acres  and  thirty-five  perches  of  this 
land  to  Samuel  Gulp  the  plaintiff  for  2095  dollars  and  50  cents,  which 
was  paid  by  Gulp  to  Fox  ;  and  Fox  and  his  wife,  by  their  deed  bear- 
ing date  the  1st  day  of  April  1814,  conveyed  it  in  fee  to  Gulp.  The 
bond  in  suit  was  given  to  indemnify  Samuel  Gulp  against  the  mort- 
gage which  is  referred  to  and  in  fact  recited  in  the  bond,  the  condi- 
tion of  which  is  in  these  words :  "  the  condition  of  this  obligation  is 
such,  that  if  the  above  bounden  obligors,  or  either  of  them,  truly 
keep  the  said  Samuel  Gulp  clear  and  harmless  of  a  certain  mortgage, 
obtained  by  Jinn  Pemberton  of  the  city  of  Philadelphia,  upon  said 
land  so  sold  to  said  Gulp,  so  that  he  shall  receive  no  damage  there- 
from," &c. 

Joseph  Fox  sold  and  conveyed  other  parts  of  the  land  which  he 
bought  of  Jinn  Pemberton  to  different  persons  ;  retaining  still  about 
two  hundred  and  thirty  acres  to  himself.  And  among  the  number 
was  Jlbia  John,  one  of  the  sureties  in  the  bond  ;  to  whom  he  had  sold 
one  hundred  apd  fifty  acres  of  it,  and  by  his  deed,  dated  the  22d  of 
March  1814,  had  conveyed  the  same  in  fee  accordingly.  Jinn  Pern* 
berton,  by  her  deed,  bearing  date  the  10th  day  of  April  1818,  after 
reciting  therein  the  mortgage,  the  conveyance  of  the  one  hundred 
and  fifty  acres  to  Jlbia  John,  and  the  request  of  Jlbia  John  that  the 
said  one  hundred  and  fifty  acres  should  be  exempted  from  the  effect 
and  operation  of  the  mortgage,  in  consideration  thereof,  and  of  one 
dollar  then  paid  to  her,  by  Jlbia  John,  "  covenanted,  promised  and 
agreed  to  and  with  the  said  Jlbia  John,  his  heirs,  executors,  adminis- 
trators and  assigns,  that  she  would  not  take  in  execution  or  levy 
upon  the  said  one  hundred  and  fifty  acres,  &c.  by  reason  of  the  above 
recited  mortgage,  or  any  process  or  proceedings  under  the  same." 

Joseph  Fox,  at  different  times,  from  the  date  of  the  mortgage  to- 
the  10th  of  April  1818,  paid  2884  dollars  and  15  cents  upon  it ; 
but  the  residue  still  remaining  unpaid,  Jinn  Pemberton,  to  August 
term,  in  the  common  pleas  of  Northumberland  county,  sued  out  a 
writ  of  scire  facias  upon  her  mortgage,  which  was  returned  served  by 
the  sheriff  on  Samuel  Gulp,  the  plaintiff  in  this  suit,  and  other  terre 
tenants,  and  nihil  as  to  Joseph  Fox,  the  mortgagee  ;  whereupon  an 
alias  scire  facias  was  sued  out,  returnable  to  November,  the  next  suc- 
ceeding term,  to  which  the  return  of  nihtt  was  made  by  the  sher- 
iff. Afterwards,  on  the  17th  of  November  1830,  there  being  no 


496  SUPREME  COURT  [Sunbwry* 

[Calp  v.  Fisher.] 

appearance  of  the  mortgagee  or  any  of  the  terre  tenants  to  the  scire 
facias,  a  judgment  was  rendered  by  the  court,  awarding  execution 
against  the  mortgaged  premises  in  favour  of  the  mortgagee,  for  the 
balance  due  upon  the  mortgage.  She  accordingly  took  out  a  writ  of 
levari  facias,  returnable  to  January  term  1831,  under  which  the 
sheriff  sold  the  whole  of  the  mortgaged  lands  to  Jinn  Pemberton,  for 
3000  dollars ;  a  sum  not  sufficient  to  cover  the  balance  due  to 
her;  and  on  the  26th  of  January  1831,  made  and  acknowledged 
deeds  of  conveyance  to  her  in  due  form,  for  the  lands  so  sold.  After- 
wards, in  the  month  of  March  following,  Samuel  Gulp,  the  plaintiff 
in  this  action,  took  a  lease  of  Jinn  Pemberton  for  the  one  hundred  and 
sixty-eight  acres  and  thirty-five  perches  which  he  had  bought  of 
Joseph  Fox,  and  then  became  her  tenant,  and  afterwards  commenced 
this  suit. 

The  defendant,  on  the  trial  of  the  cause,  gave  evidence,  after  an 
objection  by  the  plaintiff  to  its  admissibility  which  was  overruled  by 
the  court,  of  the  declaration  of  the  plaintiff,  made  before  the  sale  of 
the  land  by  the  sheriff,  and  after  the  proceeding  by  scire  facias  had 
been  commenced,  when  the  probability  of  such  a  sale  being  made 
was  mentioned  to  him  by  the  witnesses,  that  he  did  not  care  how 
soon  it  should  take  place,  that  he  would  rather  have  his  money; 
that  if  it  were  sold  he  would  get  his  money  that  he  paid  for  the 
land  back  with  interest,  and  could  buy  better  land  with  it.  The 
defendant's  counsel  further  offered  to  prove,  that  Benjamin  Tilghman 
Esq.,  agent  of  Jinn  Pemberton,  wrote  a  letter  to  Joseph  Fox  and 
others,  agreeing,  that  upon  the  payment  to  her  of  the  amount  due 
by  the  different  purchasers  of  Fox  to  him,  she  would  execute  a  re- 
lease to  them  respectively  for  the  lands  so  purchased  of  Fox.  This 
was  objected  to  by  the  plaintiff's  counsel,  and  the  evidence  overruled 
by  the  court. 

The  plaintiff  then  gave  evidence,  that  Jlbia  John  and  two  of  his 
sons  were  present  at  the  sale  of  the  land  by  the  sheriff  and  bid  for 
it;  that  the  plaintiff  had  paid  his  purchase  money;  and  that  Mr  Tilgh- 
man, the  attorney  of  Mrs  Pemberton,  said,  he  had  received  nearly  all 
the  money  that  was  so  paid  by  the  plaintiff. 

The  testimony  being  closed  on  both  sides,  the  court  charged  the 
jury,  among  other  things,  that  the  defendant  was  injured  in  conse- 
quence of  the  plaintiff's  not  having  given  him  notice  of  the  suit 
brought  upon  the  mortgage  ;  and  that  he  therefore  ought  not  to  re- 
cover the  amount  of  the  money  paid  by  him  to  Joseph  Fox  as  the 
price  of  the  one  hundred  and  sixty-eight  acres  and  thirty-five 
perches,  which  he  bought  of  him,  and  which  he  had  lost  by  the 
sheriff's  sale  under  the  execution  issued  upon  the  judgment  had  in 
the  suit  on  the  mortgage;  but  only  an  average  proportion  of  the  mort- 
gage money  due  at  the  time  of  the  sheriff's  sale,  to  be  ascertained 
by  this  rule;  that  as  the  whole  land  liable  to  the  balance  of  the  mort- 
gage money  was  to  that  amount,  so  was  the  land  lost  by  the  plaintiff 
to  the  sum  that  he  was  entitled  to  recover.  The  jury  accordingly 


June  1833.]  OF  PENNSYLVANIA.  497 

[Culp  v.  Fisher.] 

adopted  this  rule  laid  down  by  the  court,  and  gave  a  verdict  in  fa- 
vour of  the  plaintiff  for  1641  dollars  95  cents;  instead  of  2095  dollars 
50  cents,  the  amount  of  the  purchase  money  paid  by  him,  with  in- 
terest, thereon  from  the  time  that  he  was  evicted,  or  compelled  to 
take  a  lease  of  Mrs  Pemberton,  which  was  the  sum  that  he  claimed 
to  be  entitled  to  recover.  This  direction  of  the  court  to  the  jury, 
and  the  admission  of  (he  evidence  objected  to  by  the  plaintiff's  coun- 
sel, in  all  of  which  they  say  that  the  court  erred,  have  been  assigned 
as  reasons  on  the  part  of  the  plaintiff  for  his  appeal,  and  for  his  claim- 
ing a  new  trial. 

The  defendant's  counsel  allege,  that  the  circuit  court  erred  in  re- 
jecting the  letter  of  Mr  Tilghman,  the  agent  of  Ann  Pemberton,  which 
they  offered  in  evidence  ;  and  again,  in  refusing  to  instruct  the  jury, 
that  the  defendant's  intestate  was  discharged  from  his  bond,  upon 
either  of  two  grounds:  first,  because  Samuel  Culp  the  plaintiff  had 
given  him  or  his  representatives  no  notice  of  the  suit  by  scire  facias 
upon  the  mortgage;  and,  second,  because  the  covenant,  or  release 
as  they  call  it,  of  Mrs  Pemberton  given  to  Jlbia  John,  not  to  take  in 
execution  or  levy  upon  his  one  hundred  and  fifty  acres,  part  of  the 
mortgaged  lands,  was  a  discharge  of  the  lien  of  the  mortgage  upon 
all  the  lands  included  in  it;  and  they  have  assigned  these  matters 
as  the  reasons  for  the  appeal  taken  by  the  defendant  and  for  setting 
aside  the  verdict  and  granting  a  new  trial. 

Packer,  for  appellant  and  defendant,  contended,  that  the  plaintiff, 
having  given  no  notice  to  the  bail  of  the  proceedings  against  him 
upon  the  mortgage  of  Jinn  Pemberton,  and  having,  by  his  own  negli- 
gence or  fraud,  suffered  judgment  to  go  against  him  by  default,  and 
his  land  to  be  sold,  he  is  not  in  law  or  equity  entitled  to  recover 
upon  the  bond  of  indemnity.  The  record  of  .eviction  was  insufficient : 
it  appearing  that  he  had  neither  defended  himself  nor  given  notice 
to  the  bail  to  defend ;  and  it  appearing  also  from  the  evidence,  that 
there  were  collusion  and  connivance  between  the  plaintiff  himself  and 
the  mortgagee  in  procuring  the  land  to  be  sold,  &c.  He  cited,  2 
Perms.  BL  80;  1  Penns.  BL  436;  Luther  v.  Poultney,  4  Binn.  61, 
352;  Bender  v.  Fromberger,  4  Dall.  436;  Fulwilerv.  Baugher,  15 
Serg.  fy  Rawle  55.  Platt  on  Covenants  314,  321,  355;  "even  if  a 
party  recovers,  without  title,  through  the  negligence  of  the  cove- 
nantee,  he  cannot  sue  the  covenantor  for  this  disturbance."  "  The 
action  of  covenant  only  extends  to  the  consequence  of  legal  acts," 
and  the  reason  will  be  found  in  the  case  of  Hayes  v.  Bickerstaffe,  that 
the  law  shall  never  judge,  that  a  man  covenants  against  the  wrong- 
ful acts  of  strangers.  "  Where  the  eviction  was  not  produced  by 
any  thing  proceeding  from  the  covenantor,  but  from  the  person  in 
possession  of  the  premises,  it  was  not  shown  that  a  breach  of  the 
covenant  contained  in  the  lease  had  been  committed,  and  judgment 
was  given  for  the  defendant." 

He  also  contended,  that  previously  to  the  passage  of  the  act  of 

3N 


498  SUPREME  COURT  [Sunbury, 

[Gulp  v.  Fisher.] 

the  2d  of  April  1822,  a  mortgagee  could  not  release  a  part  of  mort- 
gaged premises  without  discharging  the  lien  upon  all  the  land  mort- 
gaged ;  and  more  particularly  when,  as  in  the  present  case,  the  land 
had  been  subdivided  by  the  mortgagor,  and  was  now  held  by  third 
persons,  whose  interests  were  liable  to  be  affected.  The  doctrine  is 
well  settled,  that  where  two  or  more  are  jointly  bound,  or  where  an 
entire  thing  is  subject  to  an  incumbrance,  that  a  release  of  one,  or 
a  part,  will  operate  as  a  release  of  the  whole  ;  5  WUs.  Bac.  702, 
713,  694  ;  2  Fern.  286 ;  1  Atk.  294  ;  2  Hen.  fyMunf.  38  ;  2  Coke  Lilt. 
280,  232,  236  ;  2  Bridg.  Eq.  Dig.  347,  175  ;  Fitz.  JV.  B.  238  ;  7 
Mass.  T.  R.  355  ;  2  Day's  Cases  142  ;  Franklin  v.  Gorham,  1  Ld. 
Raym.  419,  691  ;  1  Shaw  46  ;  2  Salk.  573  ;  Cro.  Eliz.  352 ;  2  Penns. 
Rep.  26  ;  1  Penns.  Bl.  433,  425 ;  2  Penns.  Practice  274  ;  1  Rawle's 
Rep.  391  ;  Milliken  v.  Brown,  14  Serg.  #  Rawle  425.  The  release 
of  Jinn  Pemberton  to  Mia  John  is  an  entire  discharge  of  the  lien.  A 
covenant  not  to  sue  till  a  particular  time,  is  not  a  release ;  but  a 
covenant  perpetual,  as  that.  I  will  not  sue  at  all,  is  a  release,  and 
may  be  pleaded  as  such  ;  Jacob's  Law  Diet.  tit.  Release  2  ;  2  Salk. 
573,  &c. 

As  to  the  measure  of  damages.  This  was  not  a  covenant  of  seisin, 
which  relates  to  title,  nor  for  quiet  enjoyment,  which  relates  to  pos- 
session. It  is  a  covenant  against  a  particular  incumbrance.  It  is  an 
indemnity  against  an  incumbrance,  which  did  not  necessarily  contem- 
plate an  ouster  or  eviction.  The  giving  of  the  bond  of  indemnity,  and 
the  amount  agreed  by  Culp  to  be  paid  for  the  land,  had  no  relation  to 
each  other.  Culp  bought  the  land,  and  gave  his  own  bond  for  the 
payment  of  the  purchase  money.  The  mortgage  of  Jinn  Pemberton 
continued  upon  the  land,  and  this  bond  of  indemnity  was  subse- 
quently entered  into,  covenanting  to  save  Culp  harmless  from  the 
said  mortgage.  Whatever  injury,  therefore,  Culp  sustained,  by 
reason  of  the  mortgage,  is  the  measure  of  damage  which  he 
ought  to  recover  from  the  bail.  It  is  immaterial  to  us  how  much  or 
how  little  he  gave  for  the  land.  The  question  is,  what  is  the  ex- 
tent of  the  injury  he  has  sustained,  against  which  we  indemnified 
him  1  and  this,  if  he  be  entitled  to  recover  at  all,  is  all  he  can  claim. 
By  ascertaining  the  whole  amount  due  at  the  time  of  sale,  and  ap- 
portioning it  to  the  whole  of  the  lands  covered  by  the  mortgage,  it 
could  have  been  ascertained  what  portion  of  it  fell  upon  Gulp's  land  ; 
and  by  paying  off  this  amount  to  the  mortgagee,  he  might  have 
procured  a  release.  Had  he  done  so,  the  amount  thus  paid  would 
doubtless  have  been  the  measure  of  his  damage,  and  this  was  the 
principle  sustained  by  the  circuit  court. 

Grier  and  Greenough,  for  plaintiffs,  denied  the  positions  assumed 
on  the  part  of  the  appellant  and  defendant.  The  measure  of 
damage  is  the  amount  paid  by  Culp  for  the  la,nd,  with  interest 
from  the  time  of  eviction.  8  Johns.  198  ;  Vanslyck  v.  Kimble,  4 
Johns.  1  ;  3  Games  111  ;  7  Johns.  173;  II  Mass.  300.  Culp  was 


June  1833.]  OF  PENNSYLVANIA.  499 

[Culp  v.  Fisher.] 

not  bound  to  give  notice  to  the  bail.  It  was  their  duty  to  remove 
the  incumbrance,  and  if  they  had  a  knowledge  of  the  existence 
of  the  scire  facias  against  him  upon  the  mortgage,  it  is  sufficient. 
The  paper  executed  by  Ann  Pemberton  to  Mia  John,  is  not  a  re- 
lease, but  a  covenant  not  to  sue,  or  not  to  levy  upon  a  portion  of 
the  land  ;  but  if  it  be  a  release,  it  does  not  discharge  the  lien  of 
the  mortgage.  A  mortgagee  had  a  right,  even  before  the  late 
act  of  assembly,  to  release  a  part  of  the  laud,  without  invalidating 
the  lien  of  the  mortgage. 

The  opinion  of  the  Court  was  delivered  by 

KENNEDY,  J. — The  letter  of  Mr  Tilghman  was  very  properly  re- 
jected. It  at  most  would  only  have  tended  to  show  the  willing- 
ness of  Mrs  Pemberton  to  give  releases  to  those  who  had  bought 
parts  of  the  lands  mortgaged  to  her,  from  Joseph  Fox,  upon  their 
coming  forward  and  paying  to  her  the  money,  that  they  were  to  pay 
to  Fox  for  the  lands,  until  her  mortgage  was  paid  off;  but  unless  it 
had  been  shown  also,  that  she  had  released  Samuel  Gulp's  land  by 
carrying  such  proposition  into  effect,  it  could  not  avail  the  defendant 
in  this  case  any  thing,  to  show  that  she  was  at  all  times  willing  to 
do  so,  without  showing  that  such  proposal  by  her  had  been  carried 
into  execution.  She  was  not  bound  to  acquit  any  part  of  the  lands 
included  in  her  mortgage,  until  she  had  received  the  whole  amount 
of  the  money  due  upon  it;  and  even  a  promise  made  by  her  to 
acquit  any  part  of  the  land,  upon  receiving  part  of  the  money  due  to 
her,  would  have  been  gratuitous,  and  without  consideration  ;  and 
therefore  would  not  have  been  binding  upon  her,  until  she  had  re- 
ceived the  money  paid  to  her  upon  the  faith  of  her  promise.  But  as 
nothing  of  this  kind  was  pretended,  it  is  evident  that  the  testimony 
was  unavailable  and  inadmissible. 

The  second  reason  cannot  be  sustained  ;  and  it  appears  to  me  that 
a  moment's  reflection  upon  the  nature  of  the  obligation  which  the 
defendant's  intestate  had  brought  himself  under  to  the  plaintiff,  will 
be  sufficient  to  satisfy  any  disinterested  mind  of  the  truth  of  this. 
He  bound  himself  in  the  most  express  terms  to  keep  the  plaintiff 
"  clear  and  harmless  of  the  mortgage,  so  that  he  should  receive  no 
damage  therefrom."  Now,  if  the  mortgage  money  was  unpaid  at 
the  time  the  defendant's  intestate  thus*  bound  himself,  there  was  but 
one  way  of  obtaining  a  complete  indemnity  for  the  plaintiff  against 
the  mortgage,  which  was,  by  paying  it ;  but  if  it  was  then  paid,  it 
would  have  been  sufficient  for  the  defendant's  intestate  or  his  repre- 
sentatives, to  show  that  in  case  the  mortgage  money  should  be  de- 
manded at  any  subsequent  time,  and  it  is  only  in  the  case  of  the 
mortgage  having  been  oaid  or  released  by  the  mortgagee  before  it 
was  sued,  that  the  defendant's  intestate  or  his  estate  could  have  been 
injured  or  affected  by  the  want  of  notice.  The  object  of  giving 
notice  was,  not  that  the  defendant  or  his  intestate  might  come  for- 
ward and  pay,  but  to  show'  that  the  mortgage  had  already  been 


500  SUPREME  COURT  [Sunbury, 

[Gulp  T.  Fisher.] 

paid  or  released.  If,  however,  it  was  not  paid  or  released,  and  there 
was  really  no  defence  that  could  be  made  against  the  payment  of  it, 
the  intestate  may  be  said  to  have  neglected  his  duty,  in  not  having 
paid,  or  otherwise  procured  payment  to  have  been  made  ;  and  he 
and  his  representatives,  therefore,  have  no  right  to  complain.  On 
the  other  hand,  if  it  were  paid  or  discharged  in  any  way,  and  the  defen- 
dant, or  his  intestate  in  his  life  time,  could  have  shown  that,  upon 
notice  given  to  either,  the  most  then  that  he  ought  to  be  permitted 
to  claim  from  the  want  of  notice  would  be,  to  show,  as  a  defence  to 
and  discharge  from  the  plaintiff's  claim  in  this  case,  that  the  mort- 
gage was  satisfied  before  the  plaintiff's  land  was  taken  in  execution 
under  it.  This  he  was  permitted  to  do  by  the  circuit  court,  so  far  as 
he  was  able,  and  if  he  failed  in  it,  the  necessary  conclusion  is,  that 
the  mortgage  was  not  paid  or  released  in  any  way  before  that  time  ; 
and  the  defendant  or  his  intestate,  in  contemplation  of  law,  cannot 
be  considered  as  having  sustained  either  loss  or  injury  by  the  neglect 
of  the  plaintiff  to  give  notice  of  the  suit  upon  the  mortgage  ;  because 
if  the  intestate  of  the  defendant  had  paid  the  mortgage  off,  as  in  effect 
he  had  bound  himself  to  do,  it  must  be  presumed  that  Gulp,  the 
plaintiff,  would  never  have  been  troubled  with  a  suit  upon  the 
mortgage,  or  have  lost  his  land  by  it. 

The  third  reason  of  the  defendant  is  the  next  in  order  to  be  con- 
sidered. The  covenant  of  Mrs  Pemberton  "  not  to  take  in  execution 
or  levy  upon  Mia  John's  one  hundred  and  fifty  acres,"  part  of  the 
land  included  in  the  mortgage,  has  been  treated  by  the  defendant's 
counsel  as  if  it  were  a  formal  release  of  so  much  of  the  mortgaged 
premises  from  the  lien  of  the  mortgage.  In  form  it  is  certainly  not 
a  release ;  but  it  is  said  that  where  an  obligee  covenants  not  to  sue 
the  obligor  at  all,  he  may  plead  it  as  a  release.  Hodges  v.  Smith, 
Cro.  Ellz.  623 ;  Smith  v.  Mapleback,  1  Turn.  Rep.  446 ;  Burgh  v. 
Preston,  8  Turn.  Rep.  486.  But  although  he  may  plead  it  as  a  re- 
lease, the  authorities  referred  to  show  that  it  is  not  because  it  is 
in  fact  or  in  law  a  release  that  he  may  do  so,  but  he  shall  be  per- 
mitted to  do  so  merely  in  order  to  avoid  circuity  of  action  ;  that  is, 
in  effect,  to  set  off  the  breach  of  the  obligee's  covenant  not  to  sue  on 
the  bond  against  his  claim  on  it.  See  also  White  v.  Dingley,  4  Mass. 
433 ;  Upham  v.  Smith,  7  Mass.  265 ;  Sewall  v.  Sparrow,  1 6  Mass. 
24.  If  it  were  properly  and  strictly  a  release,  then  a  covenant  not 
to  sue  one  of  two  joint  and  several  obligors  would  be  a  discharge  of 
both,  as  a  formal  release  certainly  is.  See  2  Roll.  Mr.  412,  G,  pi. 
4,  5 ;  Clayton  v.  Kyneston,  2  Salk.  574 ;  2  Saund.  47,  t,  note  per  Ser- 
geant Williams.  But  the  law  is  not  so  where  it  is  only  a  covenant 
not  to  sue  one  of  two  joint  and  several  obligors;  it  is  considered  barely 
a  covenant  and  not  a  release  ;  and  the  obligee  may  still  sue  the  other 
obligor.  2  Salk.  575  ;  Lacy  v.  Kyneston,  12  Mod.  551 ;  2  Ld.  Raym. 
959  ;  S.  C.  2  Saund.  47,  t,  note  ;  Wand  v.  Johnson,  6  Mund.  8  ;  Shot- 
well  v.  Miller,  \  Coxe  81  ;  Rowley  v.  Stoddard,  7  Johns.  Rep.  207  ; 
Chandler  v.  Herrick,  19  Johns.  Rep.  129  ;  Shed  v.  Pierce,  17  Mass. 


June  1833.]  OF  PENNSYLVANIA.  501 

[Culp  v.  Fisher.] 

Rep.  623 ;  Sewall  v.  Sparrow,  1 6  Mass.  24 ;  Ruggles  v.  Patton,  8 
Mass.  Rep.  480.  The  defendant's  counsel,  considering  it  as  a  re- 
lease, have  therefore  likened  the  release  of  part  of  the  land  charged 
with  the  mortgage  for  the  payment  of  the  money,  to  the  case  of  rent 
charged  on  three  acres  of  land,  where  he  who  has  the  rent,  releases 
all  his  right  in  one  acre,  and  it  is  said  that  the  release  extinguishes 
the  whole  rent.  5  Bac.  Jlbr.  tit.  Release,  694,  713.  And  the  rea- 
son assigned  for  it  is,  because  it  all  issues  out  of  every  part  of  the 
land,  and  it  cannot  be  apportioned.  Ibid.  713.  But  this  cannot  be 
said  of  money,  or  a  debt  charged  on  land  by  a  mortgage.  For  al- 
though the  whole  of  the  money  is  charged  upon  every  part  and  par- 
cel of  the  land  embraced  by  the  mortgage,  yet  if  the  land  so  mort- 
gaged consists  of  several  tracts  or  parcels,  when  the  mortgage  money 
comes  to  be  raised  by  a  judicial  sale  of  it,  under  an  execution  sued 
out  upon  a  judgment  had  upon  the  mortgage  for  that  purpose,  each 
tract  or  parcel  must  be  sold  separately ;  and  no  more  of  it  can  be  sold 
than  shall  be  found  sufficient  to  raise  the  money  claimed  upon  the 
execution.  Hence  it  is  clear  that  there  is  no  analogy  between  the 
two  cases,  nor  do  I  think  that  the  case  before  us  can  be  justly  com- 
pared to  any  other  to  which  it  has  been  attempted  to  be  likened. 
So  that  I  am  decidedly  of  opinion,  that  had  Mrs  Pemberton  given 
even  a  formal  release,  instead  of  a  covenant,  it  would  not  have  ex- 
tinguished her  claim  upon  the  residue  of  the  land  as  a  security  for 
her  money  under  the  mortgage.  In  Hicks  v.  Bingham,  1 1  Mass. 
Rep.  300,  where  the  mortgagee  of  two  parcels  of  land  released  one  of 
them  to  the  assignee  of  the  mortgagor,  it  does  not  appear  to  have 
entered  into  the  mind  of  any  one  concerned  in  the  case  that  it  dis- 
charged the  whole  mortgage.  Having  now  disposed  of  the  reasons 
assigned  by  the  defendant  for  a  new  trial,  I  shall  proceed  to  notice 
those  of  the  plaintiff. 

The  first  is  that  the  evidence  of  Solomon  Figley,  John  Rupley  and 
George  B.  King,  was  improperly  admitted  by  the  court.  This  I 
think  was  not  so ;  for  although  the  facts  which  they  testified  to,  of 
themselves  amounted  to  nothing,  and  could  have  no  influence  in 
determining  the  cause,  either  in  favour  of  or  against  either  party,  yet 
as  they  were  offered  to  be  proved  in  connection  with  other  circum- 
stances, which  were  not  proved  as  alleged,  tending  in  some  slight 
degree  to  show  collusion  between  Jinn  Pemberton  and  the  plaintiff' in 
this  cause,  or  that  the  plaintiff  had  conducted  himself,  in  respect  to 
the  claim  of  Jinn  Pemberton  on  the  mortgage,  in  such  a  way  as  appa- 
rently to  prejudice  the  defendant,  it  would  not  perhaps  have  been 
right  to  have  rejected  the  testimony  rand  as  I  feel  satisfied  that  after 
it  was  given,  it  could  have  done  the  plaintiff  no  harm  with  the  jury, 
the  admission  of  it,  therefore,  would  be  no  sufficient  ground  for 
granting  a  new  trial,  although  it  were  clearly  irrelevant. 

The  next  and  indeed  the  only  reason  among  all  that  have  been 
stated,  for  which  we  think  a  new  trial  ought  to  be  granted,  is,  that 
the  court  was  wrong  in  the  rule  which  was  laid  down  to  the  jury  for 


502  SUPREME  COURT  [Sunbury, 

[Gulp  v.  Fisher.] 

ascertaining  the  amount  that  the  plaintiff  was  entitled  to  recover. 
The  court  seems  to  have  taken  up  the  idea,  in  the  hurry  of  the  trial, 
that  the  defendant  or  his  intestate  might,  if  notice  had  been  given 
by  the  plaintiff  of  the  suit  when  it  was  commenced  on  the  mortgage, 
have  settled  and  adjusted  the  claim  in  some  way  more  favourable  to 
his  interest ;  and  that  he  was  injured  to  a  certain  extent  through  the 
neglect  of  the  plaintiff  to  give  such  notice;  and  that  a  proportionable 
abatement  of  this  claim  ought  therefore  to  be  made.  But  certainly 
it  was  incumbent  upon  the  intestate  of  the  defendant  to  have  in- 
formed himself,  and  to  have  known  whether  or  not  the  mortgage 
money  was  paid  ;  and  if  not,  to  have  paid  or  settled  it,  and  thus  to 
have  prevented  the  suit  altogether  from  being  brought  upon  the 
mortgage.  The  plaintiff  by  declining  to  give  the  notice,  no  matter 
whether  wilfully  or  inadvertently,  took  upon  himself  the  risk  of  the 
Defendant's  not  being  able  to  show  that  the  mortgage  was  paid  off 
or  discharged,  and  nothing  more  ;  for  if  it  was  not,  the  neglect  of 
duty  was  chargeable  entirely  to  the  intestate  of  the  defendant,  in  not 
having  discharged  it  before  suit  was  brought  upon  it ;  but  the  plain- 
tiff, by  giving  a  notice  to  the  defendant  or  his  intestate,  would  have 
relieved  himself  from  all  responsibility  in  respect  to  the  mortgage 
being  paid  or  discharged,  and  have  cast  it  entirely  upon  the  intestate 
or  the  defendant ;  for  if  it  had  been  paid,  and  the  intestate  or  the 
defendant,  after  notice  of  the  suit  upon  the  mortgage,  had  failed  or 
neglected  to  show  it,  and  the  plaintiff's  land  had  been  sold  as  it  was, 
the  defendant  would  not  have  been  permitted  on  the  trial  of  this  ac- 
tion to  have  given  any  thing  in  evidence,  with  a  view  to  show  that 
the  mortgage  was  discharged  before  the  judgment  for  execution  was 
had  upon  the  mortgage.  Taking  this  view  then  of  this  part  of  the 
case,  I  can  see  no  reasonable  objection  to  the  plaintiff's  recovering 
the  2095  dollars  and  50  cents,  the  amount  of  the  price  which  he 
paid  for  the  land,  with  interest  thereon  from  March  1831,  when  he 
was  forced  to  give  up  the  land  and  become  the  tenant  of  Mrs  Pem- 
berton.  It  can  not  be  denied  but  that  he  has  lost  at  least  that  amount 
indirectly  in  money,  through  the  default  of  the  intestate  of  the  de- 
fendant to  perform  the  condition  of  his  bond.  The  land  must  be 
considered,  as  between  the  parties  to  this  suit,  worth  what  the  plain- 
tiff gave  for  it ;  so  that,  by  the  loss  of  the  land,  he  has  lost  his  money. 
The  profits  of  the  land  as  long  as  he  was  permitted  to  receive  them 
for  his  own  use,  may  fairly  be  considered  as  equivalent  to  the  interest 
upon  the  price  of  the  land  down  to  the  time  of  taking  the  lease, 
when  he  became  accountable  for  the  rents  and  profits  of  the  land  to 
another  ;  but  from  that  time  it  is  nothing  more  than  just  and  equit- 
able that  he  should  be  allowed  the  interest  upon  the  2095  dollars 
and  95  cents. 
Judgment  reversed  and  a  new  trial  granted. 


June  1833.]  OF  PENNSYLVANIA.  503 


Campbell  against  Wilson. 

A  tract  of  land  with  a  man  and  his  family  residing  upon  it,  is  not  unseated  as  to 
that  part  which  is  not  cleared,  whether  the  settler  has  entered  with  or  without  title; 
and  can  not  be  sold  for  taxes. 

A  tract  of  land,  upon  which  there  is  an  actual  residence,  can  not  be  sold  for  taxes, 
whether  the  resident  has  property  sufficient  to  pay  the  taxes  or  not. 

A  tract  of  land  originally  having  in  it  four  hundred  acres,  one  hundred  were  di- 
vided off  and  sold,  and  the  purchaser  occupied  it;  the  residue  of  the  tract  assessed  in 
the  name  of  the  original  warrantee  is  the  subject  of  sale  for  taxes,  as  unseated. 

fr'  ERROR  to  the  common  pleas  of  Juniata  county. 

This  was  an  action  of  ejectment  by  George  Wilson  against  William 
Campbell  for  a  tract  of  land.  The  plaintiff  claimed  title  under  a 
warrant  to  Bartholomew  Wistar,  patent  to  Samuel  Otis,  and  sale  for 
taxes  in  1820  to  him.  The  defendant  showed  no  title,  but  relied 
upon  his  possession.  The  question  turned  upon  the  validity  of  the 
sale  for  taxes.  All  the  facts  are  fully  stated  in  the  opinion  of  his 
honour  who  delivered  that  of  the  court. 

A.  S.  Wilson  and  Greenough,  for  plaintiff  in  error. 
A.  Parker  and  J.  Fisher,  for  defendant  in  error. 

The  opinion  of  the  Court  was  delivered  by 

KENNEDY,  J. — The  first  error  assigned  in  this  case,  which  is  that 
the  taxes  exceeded  the  amount  of  the  sale  and  therefore  the  treasur- 
er's deed  is  void  and  vests  no  title  in  the  purchaser,  does  not  appear 
to  exist  in  point  of  fact.  Neither  does  it  appear  that  any  such  ques- 
tion was  made  upon  the  trial  of  the  cause.  On  the  contrary,  it  would 
seem,  from  the  president  judge's  charge,  that  the  plaintiff  in  error  had 
alleged  on  the  trial,  that  there  was  a  surplus  of  money  arising  from 
the  treasurer's  sale  of  the  land  after  paying  the  taxes  and  costs,  and, 
because  no  bond  was  given,  as  required  by  the  act  of  assembly  in 
such  case,  for  the  alleged  surplus,  had  requested  the  court  below  to 
charge  the  jury  that  the  sale  was  void  on  that  ground.  The  court 
however,  believing  from  the  evidence  adduced  that  the  amount  of 
the  money  produced  by  the  sale  was  just  equal  to  that  of  the  taxes 
and  costs,  very  properly  refused  to  give  this  direction. 

The  next  and  only  remaining  error  complained  of,  is,  that  "  the 
court  erred  in  charging  the  jury  that  a  tract  of  land  with  a  man  and 
his  family  residing  upon  it,  is  unseated  except  so  far  as  the  settler 
has  actually  cleared  and  occupied,  unless  he  entered  with  title." 
Now  although  I  am  clearly  of  opinion  that  the  court  erred  in  laying 
down  this  proposition  thus  broadly  as  law,  yet  I  think  it  was  unne- 
cessary, as  the  case  that  was  presented  by  the  evidence  given,  did 
not  require  it.  As  soon  as  a  person  enters  upon  an  unseated  tract  of 


504  SUPREME  COURT  [Svnbwy, 

[Campbell  v.  Wilson.] 

land,  whether  as  an  intruder,  or  tenant  under  a  lease  from  the  own- 
er, and  becomes  a  resident  upon  it,  or,  without  becoming  a  resident, 
improves  and  occupies  it  in  such  a  way  as  to  furnish  upon  the  land 
the  means  of  making  and  levying  the  taxes  by  distress,  it  must  be 
considered  in  law  as  seated,  and  no  longer  liable  Co  be  assessed  with 
taxes,  and  sold  for  them  if  they  remain  unpaid.  The  commissioners 
or  the  assessors  need  not  inquire,  nor  are  they  bound  to  know,  by 
what  authority  he  has  entered  upon  and  taken  possession  of  the 
land.  It  is  sufficient  for  them  to  see  that  he  is  there,  and  that  he 
has  sufficient  personal  properly  upon  the  land  whereon  to  distrain 
and  levy  the  amount  of  the  taxes ;  and  if  so,  they  are  bound  to  regard 
it  as  a  seated  tract  of  land.  It  is  only  these  lands  which  are  not  oc- 
cupied'in  such  a  manner  as  to  afford  the  opportunity  of  levying  the 
taxes  assessed  by  distress,  that  the  legislature  intended  should  be 
sold ;  and  the  remedy  of  selling  them  was  resorted  to  as  a  measure 
of  absolute  necessity,  because  it  was  found  after  full  experience  to  be 
impracticable  to  collect  the  taxes  otherwise.  All  this  is  in  accord- 
ance with  the  doctrine  laid  down  in  the  case  of  Erwin  v.  Helmy  13 
Serg.  #  Rawle  154,  155.  The  case  under  consideration  has  been 
likened  to  that,  and  it  has  been  urged  that  it  rules  the  present.  In 
the  case  of  Erwin  v.  Helm,  Van  Gordon,  who  lived  upon  the  land 
at  the  time  of  the  assessment,  was  there  as  a  tenant,  by  agreement, 
under  one  of  the  owners  of  a  tenancy  in  common  of  the  fee;  the  pos- 
session of  any  one  of  whom,  either  by  himself  in  person  or  by  his 
tenant,  was  the  possession  of  the  whole  of  the  land  so  held  in  com- 
mon, and  might  be  considered  the  possession  of  the  others.  And 
although  Van  Gordon,  who  was  thus  in  the  actual  possession  at  the 
time  of  the  assessment,  objected  to  being  assessed  for  more  than  fifty- 
six  acres,  yet  neither  he  nor  his  lessor,  without  the  consent  of  the 
other  owners  in  fee  of  the  land,  could  have  divided  and  set  apart  the 
fifty-six  acres  from  the  residue  of  the  tract;  nor  does  it  appear  in  the 
case  that  any  thing  of  this  kind  had  been  attempted.  He  was  there- 
fore considered,  for  the  purposes  of  taxation,  as  a  tenant  of  the  whole 
tract.  And  it  is  there  said  that  it  is  "where  the  possession  as  well 
as  the  estates  of  the  owners  are  distinct,  that  the  tenant  in  the  pos- 
session can  in  no  event  be  liable  in  respect  of  more  than  he  actually 
holds,"  page  155. 

In  the  case  before  us,  the  land  appears  to  have  been  patented  to 
Samuel  Jl.  Otis  upon  a  warrant  to  Bartholomew  Wistar,  and  a  survey 
made  in  pursuance  thereof  containing  four  hundred  and  thirty-six 
acres  and  thirty-five  perches.  In  1814,  the  whole  of  the  four  hun- 
dred and  thirty-six  acres  and  thirty-five  perches  were  assessed  in  the 
name  of  the  warrantee,  and  in  that  same  year  a  William  Patterson 
came  to  live  on  the  land  in  a  house  and  improvement  which  he  had 
made,  claiming  about  fifty  acres  of  the  Bartholomew  Wistar  survey, 
with  about  as  much  more  of  other  adjoining  land  without  it.  These 
hundred  acres  were  assessed  to  him  as  the  owner  thereof,  in  that 
same  year ;  and  on  the  26th  of  August  of  that  year,  the  common- 


June  1833.]  OF  PENNSYLVANIA.  505 

[Campbell  v.  Wilson.] 

wealth  granted  to  him  a  warrant  for  them,  under  which  he  had  a 
survey  made  on  the  5th  of  January  following.     After  this,  down  to 
1819  inclusive,  but  three  hundred  acres  were  assessed  in  the  name 
of  Bartholomew  Wistar  the  warrantee,  and  during  the  same  period 
one  hundred  acres  were  assessed  to  William  Patterson.    Now,  although 
the  dwelling  house  of  William  Patterson  was  within  the  lines  of  the 
Wistar  survey,  yet  Patterson  did  not,  like  Van  Gordon,  enter  upon 
and  claim  the  land  as  tenant  to  any  one  under  that  warrant,  he  took 
possession  adversely,  designating  precisely  the  extent  of  his  claim  by 
metes  and  bounds ;  for  otherwise,  had  he  taken  possession  generally 
without  such  designation,  he  would  and  ought  to  have  been  consi- 
dered a  settler  upon  the  Wistar  survey,  and  as  giving  to  it  the  char- 
acter of  a  seated  tract.     But  to  prevent  all  misapprehension,  as  well 
in  respect  to  the  nature  as  to  the  extent  of  his  claim,  immediately 
upon  taking  possession  of  it,  he  returned  it  to  the  commissioners  or 
the  assessor  as  containing  one  hundred  acres,  and  at  the  same  time,  or 
shortly  after,  obtained  a  warrant  for  it  from  the  commonwealth. 
Under  these  circumstances  I  can  see  no  objection  whatever  to  the 
residue  of  the  Wistar  survey,  which  Patterson  excluded  from  his  sur- 
vey, being  deemed  unseated,  unless  the  improvement  made  by  King 
or  Campbell,  the  plaintiff  in  error,  changed  the  character  of  it.     King, 
it  seems,  in  the  year  1816,  commenced  clearing  some  of  the  land, 
and  in  the  course  of  that  and  the  following  year  cleared  three  or  four 
acres  without  raising  a  house  or  living  upon  it.     After  him  the  plain- 
tiffin  error  continued  the  clearing  of  the  land  to  some  small  extent, 
till  1820,  when  he  erected  a  house  upon  it  and  took  up  his  residence 
there,  without  making  known  either  the  nature  or  extent  of  his  claim. 
If  the  improvement  of  either  had  been  made  before  the  assessment  i 
of  the  taxes  for  which  the  land  was  sold,  and  of  such  a  nature  as  to  ' 
have  afforded  the  collector  of  the  taxes  a  chance  of  levying  them  by 
distress,  in  the  manner  prescribed  by  the  act  of  assembly  in  such 
case,  1  would  have  considered  the  land  seated,  and  the  sale  made  of 
it  for  the  taxes  void ;  for  I  think  the  president  judge  of  the  court 
below  mistook  the  law  when  he  said,  that  the  tract  of  land  thus  en- 
tered on  by  a  person  without  title  or  colour  of  it,  although  he  might 
have  property  sufficient  at  all  times  upon  the  land  to  enable  the  col- 
lector to  make  the  taxes  out  of  it  by  distress,  that  the  land  was,  not- 
withstanding, still  to  be  deemed  unseated,  so  far  as  it  was  not  actu- 
ally improved  and  enclosed  by  him.     In  this  his  honour  appears  to 
have  confounded  the  rule  that  is  applied  to  possession,  where  the 
statute  of  limitations  is  set  up  by  a  mere  intruder,  to  bar  the  claim 
of  the  owner  to  the  land,  with  the  principle  that  is  to  determine 
and  distinguish  seated  land  from  unseated,  for  the  purposes  of  tax- 
ation.    If  the  object  be  alike  in  both  cases,  to  wit,  to  prevent  an 
unnecessary  sacrifice  or  forfeiture  of  men's  rights  to  their  lands, 
the  possession  of  the  intruder  must  be  extended  to  the  whole  tract  in 
the  latter  case,  for  the  same  reason  that  it  is  limited  to  the  pedispos- 
sessio  in  the  former.   /  If  either  King  or  Campbell  had  had  improve- 
3o 


506  SUPREME  COURT  [Sunbury, 

[Campbell  r.  Wilson.] 

ments  on  and  possession  of  the  land  without  a  residence,  but  at  the 
same  time  personal  property  there  at  all  times  sufficient  to  have  satis- 
fied the  taxes  by  a  distress  and  sale  of  it,  from  the  time  of  the  first 
assessment  down,  that  would  have  been  a  matter  to  have  been  re- 
ferred to  the  jury,  upon  which  the  direction  of  the  court  as  to  the  law 
respecting  it,  might  have  been  asked  ;  but  as  it  was  probably  thought 
that  the  testimony  was  not  sufficient  to  raise  this  question,  it  does 
not  appear  to  have  been  made.  And  although  I  think  that  the  ac- 
tual residence  of  a  man  upon  the  land  will  give  it  the  character  of 
seated  land,  and  be  sufficient  to  prevent  it  from  being  sold  as  unseated 
for  the  taxes  assessed  upon  it  during  such  residence,  whether  he 
have  property  on  it  or  not  sufficient  to  pay  the  taxes ;  for  in  con- 
templation of  the  acts  of  assembly,  residence  upon  the  land  is  deemed 
a  sufficient  security  for  the  payment  of  the  taxes ;  yet  it  does  not  ap- 
pear from  the  evidence  that  either  King  or  Campbell  had  at  any  time 
property  enough  on  the  land  to  pay  the  taxes ;  nor  does  it  appear 
that  Campbell,  who  is  the  plaintiff  in  error,  even  contended  on  the  trial 
that  ever  either  of  them  had,  before  he  moved  upon  the  land  to  reside, 
which  was  not  until  the  year  1820,  one  year  at  least  after  all  the 
taxes,  for  which  the  land  was  sold,  had  been  assessed.  After  a 
careful  review  of  this  case,  and  the  evidence  given  on  the  trial  of  it, 
I  think  that  part  of  the  Wistar  survey  which  was  not  included  within 
Patterson's  one  hundred  acres  was  unseated  land,  and  continued  to 
be  so,  for  aught  that  appeared,  down  to  the  time  that  the  plaintiff 
in  error  went  on  it  to  live ;  that  the  sale  of  it  for  taxes  was  there- 
fore valid,  and  that  the  judgment  of  the  court  below  ought  to  be 
affirmed. 
Judgment  affirmed. 


June  1833.]  OF  PENNSYLVANIA.  507 


Summerville  against  Holliday. 

The  presumption  of  law  that  a  debt  has  been  paid,  or  a  right  of  way  has  been 
granted,  or  a  bond  or  mortgage  or  legacy  has  been  satisfied,  are  those  deductions 
from  the  existence  of  a  fact,  to  which  a  legal  effect  is  attached  beyond  their  nature 
and  operation.  They  are  either  conclusive,  and  may  be  made  by  the  court,  or  incon- 
clusive and  can  only  be  found  by  a  jury.  It  is  not  so  much  a  presumption  that  the 
money  has  been  paid,  or  a  right  of  way  granted,  as  it  is  the  substitution  of  an  artifi- 
cial rule  in  the  place  of  evidence  or  belief,  after  a  delay  which  may  have  been  de- 
structive of  the  evidence  on  which  a  belief  might  be  justly  founded. 

Where  a  presumption  of  payment  from  the  lapse  of  time  is  not  repelled  by  circum- 
stances accounting  for  the  delay,  it  is  the  duty  of  the  court  to  instruct  the  jury 
that  they  are  bound  by  the  legal  presumption  ;  but  where  there  is  some  circumstance 
given  in  evidence  to  account  for  the  delay,  it  is  the  duty  of  the  court  to  refer  to  the 
jury,  as  an  open  question  of  fact,  to  determine  as  to  actual  payment. 

ERROR  to  the  common  pleas  of  Huntingdon  county. 

This  was  an  action  of  debt  for  a  legacy,  by  Ruth  Summerville  for 
the  use  of  Thomas  Jackson,  against  Robert  Wallace,  administrator  de 
bonis  non  with  the  will  annexed  of  William  Holliday  deceased,  with 
notice  to  William  Holliday  (the  third),  devisee  of  William  Holliday 
(the  second),  who  was  the  devisee  of  William  Holliday  (the  second), 
and  terre  tenant.  The  pleas  of  defendants  were  nil  debet  and  payment 
with  leave,  <$»c. 

The  plaintiff  to  support  the  issue  on  his  part,  gave  the  following 
evidence. 

llth  July  1796.  Will  of  William  Holliday  (the  first),  proved 
30th  September  1796,  by  which  the  testator  wills, 

1.  That  his  debts  be  discharged. 

2.  That  his  wife  shall  have  the  tract  of  land  he  lives  on  during 
his  life. 

3.  That  his  son  John  shall  have  the  tract  of  land  he  (John)  now 
lives  on,  containing  about  three  hundred  acres. 

4.  "  It  is  my  will  that  my  son  William  shall  have  the  tract  of  land 
he  now  lives  on,  containing  about  three  hundred  acres,  provided  he 
pays  to  my  other  three  children,  viz.  John,  Ruth  and  Mary,  the  sum  of 
300  pounds,  to  be  paid  in  the  following  manner — 100  pounds  to  be 
paid  in  one  year  after  my  decease,  and  200  pounds  to  be  paid  one 
year  after,  deducting  the  sum  of  24  pounds  5  shillings,  which  I  now 
owe  him  out  of  said  300  pounds." 

5.  That  his  daughters  Ruth  and  Mary  shall  have  each  half  of 
the  tract  of  land  he  then  lived  on. 

29th  June  1819.  Will  of  William  Holliday  (the  second),  proved 
10th  November  1819,  by  which  the  testator  wills, 

1.  That  all  his  debts  and  funeral  expenses  be  paid. 

2.  "  I  give  and  bequeath  to  my  son  William  Holliday9  and  to  his 


508  SUPREME  COURT  [Sunbury, 

[Summervillo  v.  Holliday.] 

heirs  and  assigns  for  ever,  the  tract  of  land  on  which  I  now  live,  as 
bequeathed  to  me  by  my  father  William  Holliday,  supposed  to  con- 
tain three  hundred  acres,  or  thereabouts,  subject  to  the  paying  of  my 
debts,  and  the  following  legacies  and  payments  of  money,  to  wit, 

3.  "  To  my  daughter  Polly,  now  married  to  James  Laverty,  200 
dollars. 

4.  "  To  my  daughter  Jane,  married  to  C.  Denlinger,  200  dollars. 

5.  "  To  my  daughter  Ann,  married  to  Daniel  O'Lery,  200  dollars. 

6.  "  To  my  daughter  Dorcas  Holliday,  200  dollars,  &c. 

"  My  son  William  Holliday  is  to  have  the  remainder  of  my  per- 
sonal or  mixed  estate. 

"  I  wish  my  executors  to  rent  the  lands  that  Daniel  O'Lery  and 
James  Laverty  now  live  on,  supposed  to  be  fifty  acres.  Two-thirds  of 
the  rent  to  be  paid  yearly,  to  my  two  daughters  Polly  Laverty  and 
Ann  O'Lery,  until  100  dollars  is  paid  to  each  of  them  ;  and  one- 
third  of  the  rent  of  the  aforesaid  lands  to  be  retained  by  my  execu- 
tors, to  assist  in  defraying  the  cost  that  may  accrue  on  the  ejectment 
brought  against  me  by  James  Summerville,  in  right  of  Ruth  Summer- 
ville and  others,  and  the  action  now  pending  between  myself  and 
those  claiming  under  Henry  Baugher"  His  son  William  not  to  pay 
any  money,  except  the  200  dollars  to  his  daughters  Polly  and  Ann, 
until  all  the  said  lawsuits  are  finally  ended,  and  then,  if  any  of  the 
land  lost,  the  said  legacies  to  abate  in  proportion. 

His  son  William  and  Joseph  M'Cune  appointed  executors. 

Record  read  in  case  of  James  Summerville  and  Ruth  his  wife  v. 
William  Holliday.  No.  53  of  August  term  1800,  in  common  pleas 
of  Huntingdon  county.  Summons  debt  100  pounds.  Narr.  filed  for 
Mrs  Ruth  Summerville's  part  of  the  300  pounds  mentioned  in  the 
will  of  William  Holliday,  the  first. 

17th  January  1804.  This  cause  by  consent  of  parties  referred  to 
Benjamin  Elliott,  Esq.,  David  Stewart  Esq.,  Alexander  M'Connell, 
Esq.,  James  Kerr,  Esq.,  and  Lazarus  Lowery. 

24th  January  1805.  Benjamin  Elliott,  Alexander  M'Connell  and 
David  Stewart,  three  of  the  said  referees,  report  as  follows  : 

"  The  subscribers,  three  of  the  auditors  or  referees  appointed  to 
settle  the  above  cause,  met  in  Hollidaysburg  on  the  22d  of  January 
1805,  at  the  house  of  Samuel  Galbraith,  and  the  parties  attended  before 
us.  And  after  examining  the  cause  at  some  length,  we  are  of  opin- 
ion, that  were  we  to  make  a  final  decision  at  present,  injustice  would 
be  done  to  the  parties,  as  ejectments  are  now  pending  for  considera- 
ble parts  of  the  land,  which  is  the  ground  of  controversy  between  the 
parties.  We,  therefore,  agree  that  no  determination  can  be  made 
until  a  decision  is  had  in  the  case  of  Lessee  of  Drinker  v.  William 
Holliday,  and  the  Lessee  of  E.  Nicholas  and  I.  Nicholas  v.  William 
Holliday,  now  pending  in  the  supreme  court  of  Pennsylvania,  and 
to  be  determined  in  the  circuit  court  of  Huntingdon  county." 

12th  March  1832.     Jury  sworn,  and  verdict  for  defendant. 

10th  May  1832.     Writ  of  error  filed  for  plaintiff. 


June  1833.]  OF  PENNSYLVANIA.  509 

[Summerville  v.  Holliday.] 

1 8th  June  1832.  Judgment  of  common  pleas  reversed  by  supreme 
court. 

8th  Jauuary  1831.  Deed  of  William  Holliday  (the  third)  to 
Thomas  Jackson,  for  sixty  acres  and  ninety  perches,  for  the  purpose, 
and  by  which  the  long  contested  dispute  and  suits  between  the  Ni- 
cholas  title  and  the  Holliday  title,  so  far  as  the  Nicholas  claim  inter- 
fered with  William  Holliday's  tract,  was  compromised  and  finally 
settled. 

13th  April  1830.  Deed  of  James  Summerville  and  Ruth  his  wife 
to  Thomas  Jackson,  assigning  legacy  now  claimed,  and  the  said  grant- 
ors' interest  in  the  tract  of  laud  devised  by  William  Holliday  (the 
first)  to  the  said  William  Holliday's  (the  first)  daughters,  Ruth  and 
Mary. 

Record  read  in  case  of  Lessee  of  Henry  Drinker  v.  William  Holli- 
day and  Sigh  Clossin.  Brought  in  circuit  court  for  Huntingdon 
county  to  December  term  1802.  Ejectment  for  land  in  Frankstown 
township  (part  of  the  land  devised  by  William  Holliday,  the  first,  to 
William  Holliday,  the  second).  Removed  to  common  pleas  docket, 
No.  71  of  November  term  1809. 

22d  June  1810.  A  jury  sworn,  and  verdict  for  defendants,  and 
judgment.  October  1811,  at  supreme  court,  writ  of  errror  struck 
off,  having  issued  irregularly. 

The  defendant,  to  support  the  issue  on  his  part,  offered  in  evidence 
as  follows,  to  wit : 

Record  in  case  of  Joseph  Nicholas  v.  John  Holliday,  Mary  Holli- 
day and  John  Martin,  of  September  term  1792.  Ejectment. 

May  term  1801.  Jury  sworn,  and  verdict  for  plaintiff,  and  judg- 
ment. 

Habere  facias  possessionem  and  fieri  facias  to  September  term  1801, 
returned  Not  served.  Alias  habere  facias  and  fieri  facias  to  Septem- 
ber term  1802.  Pluries  habere  facias  and  fieri  facias  to  September 
term  1806,  No.  5  (prout  said  record),  offered  by  defendant,  with  the 
offer  to  follow  this  up  with  evidence  to  show  that  William  Holliday 
(the  second)  and  William  Holliday  (the  third)  were  turned  out  of  pos- 
session under  this  ejectment  and  other  ejectments  which  will  be 
shown. 

This  evidence^was  objected  to  by  the  plaintiff,  and  the  court  said 
they  would  receive  the  evidence  on  this  principle :  that  so  far  as 
the  defendant  and  his  ancestor  were  out  of  possession  by  adverse 
title,  the  interest  accruing  on  the  legacy  might  be  suspended  ;  and 
that  this  opinion  was  given  as  well  on  principle  as  on  the  act  of  the 
parties,  as  now  in  evidence,  by  the  plaintiff 's  stopping  the  former  suit 
for  the  legacy  until  these  and  other  ejectments  should  be  determined. 

To  this  opinion  of  the  court  the  counsel  for  plaintiff  excepted. 

The  record  of  the  last  said  ejectment  was  then  read  by  defendant. 

John  Patton,  Esq.  a  witness  for  defendant  sworn,  says — "  When 
I  was  sheriff,  I  had  a  writ  of  habere  facias  possessionem  (in  this  last 
mentioned  ejectment).  Began  on  the  northerly  side  of  the  tract, 


510  SUPREME  COURT  [Sunbury, 

[Summerville  v.  Holliday.] 

or  the  claim  of  Nicholas.  Ran  to  ,  came  to  the  river,  then 

ran  across  near  to  old  John  Holliday's  improvement ;  left  old  John's 
mansion  house  outside  of  the  line — John  then  lived  where  the  old  man 
lived  ;  then  went  to  the  division  line  between  the  Halding  and 
M'Kinly  tracts.  William  Holliday  said  that  was  his  land.  I  stopped 
and  they  sent  for  Sigh  Clossin  and  agreed  to  leave  it  to  his  oath, 
who  he  was  a  tenant  under.  Sigh  Clossin  proved  on  oath  he  was 
tenant  under  William  Holliday,  and  we  then  went  no  further.  I 
gave  possession  of  no  land  then,  within  the  bounds  of  the  JW'Kinly 
tract.  I  did  not  deliver  possession  of  a  yard  then  claimed  by  Wil- 
liam Holliday.  The  recovery  was  only  against  John  Holliday." 

Defendant  also  offered  record  in  the  case  of  Lessee  of  William  Holli- 
day v.  Henry  BaugJier.  No.  56  January  term  1803,  in  C.  P.  Eject- 
ment for  fifty  acres  of  arable  laad  and  fifty  acres  of  woodland,  (this 
the  suit  settled  by  the  deed  read  heretofore  of  the  8th  of  April  1831, 
William  Holliday  to  Thomas  Jackson)  removed  to  circuit  court  to 
March  term  1803. 

Referred.  Brought  back  to  common  pleas,  No.  80,  November 
term  1809,  continued  to  January  term  1814,  and  jury  sworn  and 
verdict  and  judgment  for  plaintiff.  Writ  of  error  and  judgment  re- 
versed the  18th  of  March  1816.  25th  of  September  1821,  jury 
sworn  and  discharged  for  sickness  of  a  juror.  Continued  to  the  20th 
of  September  1826,  and  then  removed  to  circuit  court  to  December 
term  1826.  Referred,  and,  the  8th  of  May  1828,  arbitrators  chosen. 
Continued  to  March  term  1829,  which  last  said  record  was  ob- 
jected to  by  the  plaintiff's  counsel,  and  admitted  by  the  court,  who 
say — This  suit  or  record  is  admitted  on  the  principle  the  court  be- 
fore decided  respecting  the  abatement  of  the  interest. 

To  the  admission  thereof  and  opinion  of  the  court,  the  counsel  for 
the  plaintiff  excepted. 

Burnside,  President,  thus  charged  the  jury. 

The  first  point  made  by  the  defendant  is,  "  that  the  legacy  for 
which  this  suit  was  brought  was  due  in  1798  ;  that  the  present  suit 
was  not  brought  until  August  term  1832.  The  presumption  of  law 
is  that  the  legacy  has  been  paid  or  released,  and  the  plaintiff  can 
not  recover." 

This  court  agree,  and  so  direct  the  jury,  thaj,  from  the  lapse 
of  time  the  presumption  is  that  this  legacy  is  paid,  unless  there 
are  such  circumstances  given  in  evidence  which  will  repel  that  pre- 
sumption, and  of  which  the  court  will  speak  hereafter.  The  rule  is 
well  settled  and  obtains  as  to  bonds,  mortgages  and  judgments.  AK. 
these  claims  will  be  presumed  to  be  paid  after  twenty  years.  But 
in  cases  of  bonds,  judgments  and  mortgages,  when  the  debt  has  been 
due  twenty  years,  there  is  a  presumption  of  payment.  This  pre- 
sumption, like  all  other  presumptions,  may  be  removed  by  proof  of 
the  acknowledgement  of  the  debt,  payment  of  interest,  and  many 
other  circumstances.  The  same  principle  has  been  extended  to  ad- 


June  1833.]  OF  PENNSYLVANIA.  511 

[Summerville  v.  Holliday.] 

ministration  bonds,  and  I  see  no  reason  why  it  should  not  apply  to  a 
legacy. 

We  think  it  does,  and  so  instruct  you,  and  on  this  point  your  ver- 
dict should  be  for  the  defendant,  unless  there  are  such  circumstances 
given  in  evidence  that  will  repel  that  presumption. 

We  shall  proceed  to  consider  those  circumstances.  A  suit  was 
brought  for  this  legacy  in  1800,  about  four  years  after  the  death  of 
William  Holliday  the  elder.  It  is  referred  in  1804.  A  report  was 
made  in  1805,  that  the  auditors  could  not  make  a  final  decision,  as 
the  cases  of  Drinker  v.  Holliday  and  Nicholas  v.  Holliday  were 
pending  and  undetermined  ;  from  the  records  in  evidence,  the  Nich- 
olas suit,  or  rather  the  Baugher  suit  against  William  Holliday,  was 
not  ended  till  1815  ;  the  Drinker  suit  in  1796.  The  Nicholas's  had 
recovered  in  1801  against  John  Holliday,  Mary  Holliday  and  Martin, 
and  issued  their  habere  facias.  William  Holliday  (the  second)  alleged 
they  had  got  possession  of  land  which  belonged  to  him,  and  he 
brought  his  ejectment  in  1803.  This  suit  was  tried — verdict  for 
plaintiff,  and  set  aside  in  the  supreme  court.  This  suit,  and  all  the 
others  undetermined,  were  settled  by  Mr  Jackson,  and  settled  with 
William  Holliday  by  the  deed  of  the  8th  of  January  1831.  The  evi- 
dence of  Mams,  we  think,  on  this  point,  weighs  little,  because  more 
than  twenty  years  elapsed  from  that  conversation  to  the  bringing  of 
the  action  ;  the  will  of  William  Holliday,  the  second,  is  also  relied  on. 

Do  all  these  circumstances  satisfy  you  and  repel  the  presumption 
of  payment  which  the  law  raises  1  Are  the  facts  first  stated  incon- 
sistent with  this  presumption  ?  We  shall  now  refer  you  to  the  case 
ofM*Culloch  executor  of  M'Culloch  v.  Montgomery  and  wife.  [The 
court  read  that  case.]  On  the  authority  of  this  case  and  the  pen- 
dency and  proceedings  in  the  case  of  Summerville  and  wife  v.  Holli- 
day for  the  same  legacy,  the  construction  of  William  Hottiday's  will, 
the  pendency  of  the  several  ejectments,  the  records  which  have 
been  read,  the  plaintiff's  counsel  contend  we  should  instruct  you  it 
is  rebutted  and  repudiated  in  point  of  law.  This  instruction  we  do 
not  give.  We  leave  it  to  you  to  determine  upon  this  evidence, 
whether  the  usual  presumption  arising  from  length  of  time  is  not 
rebutted  by  the  circumstances  of  these  ejectments — the  suit  for  the 
legacy,  the  report  of  the  auditors,  and  all  the  other  facts  proved  in 
the  case. 

2.  The  defendant  further  requests  us  to  instruct  you,  "  that  the 
circumstances  given  in  evidence  in  this  suit  do  not  rebut  the  pre- 
sumption of  law,  that  this  legacy  is  satisfied  and  paid." 

3.  And  further,  "  that  where  there  are  a  variety  of  circumstances 
given  in  evidence  to  rebut  the  presumption  of  payment,  it  is  a  matter 
of  fact,  which  the  jury  must  decide,  whether  the  circumstances  given 
in  evidence  do  rebut  the  presumption  or  not." 

These  points  are  already  fully  answered.  We  do  not  instruct  you 
as  requested  on  point  No.  2.  We  leave  it  to  you  to  determine  whether 
the  circumstances  rebut  the  presumption.  The  last  point  is  answer- 


512  SUPREME  COURT  [Sunbury, 

[Summcrvillc  v.  Holliday.] 

ed.  We  have  left  it  to  you  whether  the  circumstances  given  in  evi- 
dence rebut  the  presumption. 

4.  We  are  further  requested  to  state  to  you,  "  that  Thomas  Jack- 
son, the  real  plaintiff  in  this  suit,  cannot  recover  the  legacy  for  which 
this  suit  was  brought,  as  he  has  accepted  a  deed  from  William  Hol- 
liday, the  present  defendant,  for  part  of  the  land  out  of  which  this 
legacy  is  to  be  paid,  and  has  accepted  a  warrant  against  all  claims 
under  the  will  of  William  Holliday,  the  elder." 

We  do  not  instruct  you  as  required,  we  direct  you  that  the  accept- 
ance of  a  deed  for  a  part  of  the  land  out  of  which  this  legacy  is  to 
be  paid,  nor  the  warranty  against  all  claims  under  the  will  of  Wil- 
liam Holliday,  will  not  prevent  a  recovery. 

If  you  find  for  the  plaintiff,  the  next  inquiry  will  be  how  much  1 
We  instruct  you  that  only  one-third  of  the  legacy  can  be  recovered, 
that  from  this  in  the  first  instance  the  one-third  of  the  24  pounds  5 
shillings  is  to  be  deducted  with  one  year's  interest  thereon,  that  is, 
8  pounds  1  shilling  and  6  2-3  pence  is  to  be  deducted. 

We  further  instruct  you  that  so  far  as  the  defendant  or  his  ances- 
tor was  out  of  possession  of  the  premises  devised,  you  may  deduct 
interest  pro  rato  for  that  amount  and  for  that  time ;  and  if  you  are 
satisfied  that  the  evidence  given  by  the  plaintiff  repels  the  presump- 
tion from  lapse  of  time,  after  making  these  deductions,  you  will  find 
the  balance  for  the  plaintiff. 

Errors  assigned. 

1.  That  the  court  below  erred  in  receiving  the  testimony  offered 
by  defendant,  mentioned  in  the  first  bill  of  exceptions,  for  the  pur- 
pose therein  mentioned. 

2.  That  the  court  erred  in  receiving  the  testimony  offered  by  de- 
fendant, mentioned  in  the  plaintiff's  second  bill  of  exceptions,  for  the 
purpose  therein  mentioned. 

3.  That  the  court  below  erred  in  refusing  to  instruct  the  jury,  as  re- 
quested and  contended  for  by  the  plaintiff  below  and  plaintiff  in 
error,  "  that  the  pendency  and  proceedings  of  the  case  of  Summer- 
ville  and  wife  v.  Holliday,  for  this  same  legacy,  (the  record  of  which 
was  given  in  evidence  by  plaintiff)  the  construction  of  William  Hol- 
liday's,  the  pendency  of  the  several  ejectments  the  records  of  which 
have  been  read  in  this  case,  rebutted  and  repudiated,  in  point  of  law, 
any  presumption  of  payment  which  the  law  raises  from  the  lapse  of 
twenty  years  from  the  time  this  legacy  became  payable,  until  this 
suit  was  brought  for  recovery  of  the  same,"  and  in  leaving  the  effect 
of  the  same  in  point  of  law  to  be  determined  by  the  jury. 

4.  That  the  court  below  erred  in  their  answers  to  the  first,  second 
and  third  points  of  the  defendants  below. 

5.  That  the  court  erred  in  charging  the  jury  ;  that  only  one-third 
of  the  legacy  (of  300  pounds)  could  be  recovered  by  the  plaintiffs  in 
this  case,  subject  to  a  deduction  of  one-third  of  24  pounds  5  shillings. 

6.  That  the  court  erred  in  instructing  the  jury,  that  so  far  as 
William  Holliday  (the  third)  or  his  ancestor,  were  out  of  possession 


June  1833.]  OF  PENNSYLVANIA.  513 

[Summerville  v.  Holliday.] 

of  the  premises  devised,  they  might  deduct  interest  on  the  legacy 
pro  rata,  for  that  amount  and  for  that  time. 

7.  That  the  court  below  erred  in  saying,  that  the  presumption  of 
law  of  the  payment  of  money,  after  the  lapse  of  twenty  years  from  the 
time  it  became  payable,  applies  to  the  case  of  a  legacy,  unless  rebutted. 

Bell  and  Potter,  for  plaintiff  in  error,  cited,  7  Serg.  <$•  Rawle  17; 
4  Crunch  420 ;  5  Johns.  Rep.  417  ;  14  Serg.  fy  Rawle  22  ;  10  Johns. 
Rep.  417;  3  Blnn.  337 ;  1  Johns.  Chan.  316  ;  1  Coxe  535;  2  Ves.  43 ; 
1  P.  Wms  742 ;  3  P.  Wms  287. 

Miles,  contra,  cited,  1  Penns.  Rep.  419,  148 ;  14  Serg.  fy  Rawle 
19  ;  17  Serg.  $  Rawle  353  ;  13  Serg.  <$•  Rawle  124. 

The  opinion  of  the  Court  was  delivered  by 

Ross,  J. — In  this  case  seven  errors  have  been  assigned.  I  shall 
however  confine  myself  to  an  examination  of  those  three  alleged  to 
be  in  the  charge  of  the  court,  as  they  only  seem  to  be  of  any  im- 
portance. , 

The  third,  fourth,  and  seventh  errors,  embracing  in  effect  the 
same  questions,  will  be  considered  together.  It  was  contended  in 
the  court  below  that  the  legacy  for  which  the  suit  was  brought, 
having  become  due  in  1798,  and  the  present  suit  not  having  been 
instituted  until  August  term  1832,  the  presumption  of  law  was  that 
the  legacy  had  been  paid  or  released  ;  and  consequently  that  no  re- 
covery could  be  had  by  the  plaintiff.  The  court  in  this  charge  in- 
structed the  jury,  that  from  the  lapse  of  time,  the  presumption  was 
that  the  legacy  had  been  paid,  unless  there  were  such  circumstances 
given  in  evidence,  which  would  repel  that  presumption.  In  this 
opinion,  there  certainly  was  no  error.  After  a  lapse  of  twenty  years, 
without  any  demand  being  made,  or  any  measures  taken  to  collect, 
or  any~tning  paid  on  account  thereof,  a  legacy  will  be  presumed  to 
have  been  paid ;  and  a  court  should  so  instruct  the  jury,  unless  the 
laches  or  delay  should  be  accounted  for  in  some  manner  consistently 
with  the  existence  of  the  legacy — or  in  other  words,  unless  there  be 
evidence  sufficient  to  repel  the  presumption  of  law.  There  is  no 
statutory  provision  limiting  the  time  within  which  a  legacy  shall  be 
demanded  or  sued  for;  or  within  what  time  it  shall  be  barred  or  pre- 
sumed to  have  been  paid.  It  rests,  however  upon  the  same  princi- 
ples, which  govern  the  cases  of  bonds,  mortgages  and  judgments; 
and  there  surely  is  nothing  in  the  nature  or  character  of  the  demand, 
which  should  exempt  it  from  the  same  rule  of  decision.  The  rule 
respecting  the  presumption  of  payment  from  the  lapse  of  time  is  in 
the  nature  of  the  statute  of  limitations,  and  is  derived  by  analogy 
from  the  English  statute  concerning  writs  of  entry  into  lands.  In 
the  case  of  Jlrden  v.  Jlrden,  1  Johns.  Ch.  Rep.  316,  it  is  said,  "there 
is  no  legal  bar  by  force  of  the  statute  of  limitations  to  a  legacy.  It 
cannot  be  pleaded;  but  still  the  court,  justly  averse  to  giving  counte- 
3p 


614  SUPREME  COURT  [Sunbury, 

tSummerville  v.  Holliday.] 

nnnce  to  any  stale  demands,  adopts  the  provisions  of  the  statute  as  a 
guide  in  the  -exercise  of  its  discretion."  In  Durdon  v.  Gaskill,  2 
Yeates  368,  it  was  held,  that  after  a  length  of  time,  payment  of  a 
legacy  would  be  presumed  ;  though  such  presumption  might  be  re- 
butted by  other  circumstances.  And  it  is  also  clear  from  the  decis- 
ions in  the  cases  of  Parker  v.  Jlsh,  1  Fern.  256,  and  Higgins  v.  Craw- 
ford, 2  Fes.  Jun,  571,  that  lengih  of  time  will  raise  a  presumption 
of  a  legacy  having  been  paid;  and  that  such  presumption,  unless 
repelled  by  evidence  of  particular  circumstances,  will  be  conclusive. 
The  case  of  Kane  v.  Bloodgood,  1  Johns.  Ch.  Rep.  90,  which  overrules 
the  case  of  Decouche  v.  Savetier  in  3  Johns.  190,  may  also  be  referred 
to  as  an  authority.  In  that  case,  it  is  said,  that  since  a  remedy  at 
law  is  given  by  statute  to  recover  legacies  or  distributive  shares,  the 
statute  of  limitations  would  be  a  bar  to  a  suit  for  a  legacy  in  equity, 
as  well  as  at  law.  In  Cope  v.  Humphreys,  14  Serg.  fy  Rawle  20, 
Justice  Duncan  says,  "  that  twenty  years  is  the  fixed  limitation  as 
to  all  debts,  with  the  exception  of  trusts,  which  depend  on  other  prin- 
ciples." And  I  may  add,  that  only  such  trusts  as  are  not  at  all  cog- 
nizable at  law  would  be  embraced  within  the  exception.  A  legacy 
is  not  such  a  trust;  and  there  can  be  no  doubt  therefore  of  its  being 
barred  by  lapse  of  time.  The  rule  presuming  the  payment  of  debts 
is  founded  upon  policy  and  the  welfare  and  safety  of  the  party.  The 
law  will  not  encourage  the  laches  of  a  plaintiff,  but  will  interpose  a 
shield  to  protect  the  defendant  against  stale  demands,  after  the  lapse 
of  twenty  years.  If  it  will  protect  him  from  the  payment  of  a  judg- 
ment after  the  lapse  of  twenty  years,  I  can  see  no  reason,  as  I  have 
already  said,  why  a  legacy  should  not  also  be  presumed  paid  after  a 
lapse  of  twenty  years  from  the  time  it  became  due,  in  the  absence 
of  any  proof  to  rebut  the  presumption  of  payment.  See  Laussafs 
Edit,  of  Fonblanque's  Equity  330. 

The  presumption  of  law  that  a  debt  has  been  paid,  or  a  right  of 
way  has  been  granted,  or  a  bond,  a  mortgage  or  legacy  satisfied, 
are  those  deductions  from  the  existence  of  a  fact,  to  which  a  legal 
effect  is  attached  beyond  their  nature  and  operation.  They  are  either 
conclusive,  and  may  be  made  by  the  court ;  or  they  are  inconclusive, 
and  can  only  be  found  by  a  jury.  2  Saund.  Rep.  728,  175;  4  Burr. 
2225 ;  Stark.  Ev.  1240,  1245.  Hence  I  conclude,  that  it  is  not  so 
much  a  presumption  that  the  money  has  been  paid,  or  a  right  of  way 
granted,  as  it  is  the  substitution  of  an  artificial  rule  in  the  place  of  evi- 
dence and  belief,  after  a  delay  which  may  have  been  destructive  of 
the  evidence  on  which  a  belief  might  be  justly  founded. 

It  has  been  further  contended,  that  the  rebutting  evidence  which 
was  given  in  this  case  upon  the  trial  was  sufficient  to  repel  any  pre- 
sumption of  law  arising  from  the  lapse  of  time  ;  and  that  the  court 
below  should  have  so  instructed  the  jury.  Proof  rebutting  the  pre- 
sumption may  be  derived  from  a  single  fact,  or  it  may  consist  of  a 
variety  of  circumstances  connected  with  the  situation  of  the  par- 
ties, or  the  subject  matter  under  consideration.  Where  the  presump- 


June  1833.]  OF  PENNSYLVANIA.  515 

[Sumtaerville  v.  Holliday.] 

tion  from  the  lapse  of  time  is  not  repelled  by  some  circumstances 
accounting  for  the  delay,  it  is  the  duty  of  the  court  to  instruct  the 
jury,  that  they  are  bound  by  the  presumption  of  law  ;  but  where 
there  is  some  circumstance  offered  in  evidence  to  account  for  the 
delay,  it  is  then  the  duty  of  the  court  to  refer  it  to  the  jury,  as  an 
open  question  of  fact,  to  determine  as  to  actual  payment.  These 
principles  were  fully  recognized  in  the  case  of  Cope  v.  Humphreys, 
already  cited.  See  also  Phillips 's  Evid.  115,  117. 

If  any  of  the  circumstances  which  were  given  in  evidence  accounted 
for  the  delay,  it  was  proper  that  they  should  be  left  to  the  jury. 
4  Cranch  420.  The  case  of  M'Culloch  v.  Montgomery,  7  Serg.  4" 
Rawle,  has  been  much  relied  on  in  this  case  by  the  counsel  for  the 
plaintiff.  This  question,  however,  was  not  raised  in  that  case.  It 
was  not  before  the  court  for  adjudication  ;  and  therefore  the  express- 
ion used  by  Chief  Justice  Tilghman,  seeming  to  admit  the  right  of  the 
court  to  instruct  the  jury,  that  the  circumstances  proved  are  sufficient 
to  repel  the  presumption  of  payment,  is  not  to  be  received  with  that 
authority  for  which  the  counsel  contend.  This  court  is  only  gov- 
erned by  the  decision  actually  made  in  any  case,  upon  the  errors 
assigned.  We  are  not  responsible  for  the  language  used,  or  the  rea- 
soning adopted  by  the  judge  who  delivers  the  opinion  ;  but  simply 
for  the  points  as  argued  and  decided.  The  case,  therefore,  of  Jlf'Cul- 
loch  v.  Montgomery  we  do  not  think  is  decisive  of  the  question.  It 
is  true,  the  court  might  have  given  their  opinion  on  the  nature  and 
sufficiency  of  the  evidence  to  repel  the  presumption  ;  but  they  were 
not  bound  to  do  so,  and  neither  would  the  jury  have  been  bound  by 
such  opinion.  The  repelling  evidence  consisted  of  a  great  variety  of 
facts  and  circumstances,  which  it  was  the  province  of  the  jury  to 
decide,  and  to  draw  such  inference  from,  as  would  seem  to  them  cor- 
rect ;  and  therefore  I  think  the  court  below  was  justified  in  submit- 
ting the  question  to  the  jury,  whether  or  not  the  evidence  offered 
was  sufficient  to  repel  the  presumption  of  payment,  after  the  lapse  of 
twenty  years. 

As  I  have  before  remarked,  the  court  think  the  other  errors  have 
riot  been  sustained,  and  therefore  we  direct  the  judgment  to  be 
affirmed. 

KENNEDY,  J. — Entertaining  great  respect  for  the  opinion  of  the 
majority  of  this  court,  and  believing  that  the  peace  and  welfare  of 
the  community  may  depend  in  some  measure  upon  the  degree  of 
confidence  with  which  the  decisions  of  the  court  of  dernier  resort  in 
the  state  may  be  received,  and  that  that  confidence  may  be  in- 
creased by  the  unanimity  attending  those  decisions  as  well  as  by 
the  reasons  advanced  in  support  of  them  ;  it  is  with  unfeigned  reluct- 
ance, as  well  as  diffidence,  that  I  have  ventured  upon  this  occasion 
to  express  my  dissent.  Indeed,  nothing  could  have  prompted  me  to 
it,  but  a  firm  and  settled  conviction  that  the  decision  of  the  court,  in 
this  case,  goes  to  determine,  what  I  consider  to  be  most  clearly  a 


516  SUPREME  COURT  [Sunbury, 

[Summcrvillo  v.  Holliday.] 

mixed  question  of  law  and  fact ;  to  be  a  question  exclusively  for  the 
jury  to  decide  according  to  their  discretion,  without  any  legal  advice 
or  direction  from  the  court  in  regard  to  it. 

<  Mr  Starkie,  in  his  Treatise  on  Evidence,  part  4,  pages  1235  and 
/^4236,  in  speaking  of  presumptions  and  their  several  natures,  says, 
that  which  arises  from  the  lapse  of  a  defined  space  of  time,  is 
always  in  its  nature  artificial,  and  not  natural ;  for  evidence,  when 
left  to  its  own  natural  weight,  is  not  confined  within  arbitrary  and 
if  artificial  boundaries  ;  thus,  at  the  expiration  of  twenty  years,  with- 
out payment  of  interest  on  a  bond,  or  other  acknowledgement  of  its 
existence,  satisfaction  is  to  be  presumed  ;  but  if  a  single  day  less  than 
twenty  years  has  elapsed,  the  presumption  of  payment,  from  mere 
lapse  of  time,  does  not  arise.  It  is  then  obviously  an  artificial  and 
arbitrary  distinction  ;  for  no  man's  mind  is  so  constructed,  that  the 
mere  lapse  of  the  single  day,  which  completes  the  twenty  years, 
would  absolutely  generate  in  it  a  conviction  of  belief,  that  the  debt 
had  been  satisfied.  So  far,  then,  as  it  is  artificial  and  arbitrary, 
it  is  a  presumption  purely  of  law,  because  it  is  established  by  the 
law,  and  from  this  source  it  derives  all  its  force  and  artificial 
operation  and  effect,  beyond  its  mere  natural  tendency  to  produce  a 
similar  effect.  This  presumption  being  the  creature  of  the  law,  it 
necessarily  follows,  that  it  is  for  the  court  to  say  to  the  jury,  on  a 
given  state  of  facts,  whether  they  ought  to  draw  the  inference,  or 
to  raise  the  presumption  in  favour  of  payment,  or  not. 

And  although  I  admit,  that  it  is  the  province  of  the  jury  to  draw 
or  make  every  presumption  of  a  mixed  character,  that  is,  of  law  and 
fact,  as  contradistinguished  from  one  merely  of  law,  with  which  the 
jury  have  nothing  whatever  to  do,  but  belongs  exclusively  to  the 
court ;  Stark.  Ev.  part  4,  page  1243  ;  yet,  in  making  presumptions 
of  law  and/ocf,  the  jury  are  required  to  be  advised  and  directed  by  the 
court;  as  in  the  case  of  an  incorporeal  hereditament,  after  an  adverse 
enjoyment  of  it  for  the  space  of  twenty  years  unanswered,  the  court, 
if  requested,  is  bound  to  instruct  the  jury  that  they  ought  to  presume 
a  grant  in  favour  of  the  party  so  enjoying  ;  but  if  it  were  to  appear 
from  the  evidence,  that  such  hereditament,  although  enjoyed  ad- 
versely for  the  twenty  years,  yet  that  the  right  to  such  enjoyment 
had  been  contested  during  the  whole  of  that  time,  it  would  be  the 
duty  of  the  court  to  direct  the  jury  that  no  such  presumption  could 
be  made  by  them  ;  Ibid.  1243,  1244.  In  Stiver  v.  Whitman,  6  Binn. 
419,  it  is  laid  down  that  what  circumstances  will  justify  the  pre- 
sumption of  a  deed  or  grant  is  matter  of  law,  and  that  it  is  the  duty 
of  the  court  to  give  their  opinion,  whether  the  facts,  if  proved,  will 
justify  the  presumption.  Miserable,  indeed,  would  be  the  state  of 
society,  if  it  were  not  a  question  of  law  to  be  decided  by  the  court. 
Great  insecurity  and  uncertainty  would  necessarily  attend  the  titles 
to  property,  especially  that  of  an  incorporeal  nature,  to  which  the 
v  statute  of  limitations  is  not  applicable.  Legal  advice,  such  as  might 
be  relied  on,  could  never  be  given  or  obtained  ;  for  the  question  must 


June  1833.]  OF  PENNSYLVANIA.  517 

[Summerville  v.  Holliday.] 

be  referred  to  the  decision  of  a  jury  ;  to  be  determined  by  their  feel- 
ings, prejudices,  or  prepossessions,  without  any  legal  instruction  from 
the  court,  and  the  presumption  made,  or  not  made,  accordingly  as 
they  shall  happen  to  be  moved  towards  the  parties  litigant.  Hence, 
being  to  be  decided  not  by  any  fixed  rule  or  principle  of  law,  but  at 
most  by  some  rude  and  undigested  notions  of  right  and  wrong,  or 
ill  founded  prejudices,  if  not  hatred  against  one  party,  or  good  feel- 
ing and  affection,  from  long  acquaintance,  in  favour  of  the  other ;  or 
sympathies  produced  by  the  circumstances  attending  the  case ;  in 
short,  by  the  influence  of  all  those  impulses  to  which  the  infirmity, 
and  possibly  the  depravity  of  human  nature  are  subject :  it  would  be 
utterly  impossible,  even  for  the  most  experienced  and  distinguished 
of  the  profession,  to  give  any  advice,  or  to  foretell  what  may  be  the 
result,  where  every  thing  must  be  decided  by  the  jury,  without  legal 
advice  and  direction  from  the  court. 

If  we  refer  to  the  origin  of  the  rule  on  this  subject,  and  the 
authorities  under  which  it  has  been  established,  we  will  see  that  it 
is  founded  rather  upon  acquiescence  than  delay,  and  that  the  courts 
have  uniformly  instructed  juries,  under  what  circumstances  it  ought 
to  be  allowed. 

The  doctrine  that  bonds  of  many  years  standing  should  be  pre- 
sumed to  be  paid,  where  the  obligees  had  suffered  them  to  lie  dor- 
mant, was  first  established  in  courts  of  equity,  by  their  administer- 
ing relief  to  the  obligors  who  were  sued  on  them  at  law.  In  Coles 
v.  Emerson,  and  Carpenter  v.  Tucker,  I  Chan.  Rep.  78,  as  early  as 
10  Car.  I,  1635,  the  court  of  chancery  decreed  the  bonds  upon 
which  the  complainants  in  these  cases  respectively  were  sued  at  law, 
to  be  delivered  up  to  be  cancelled,  upon  the  ground  that  they  must 
be  considered  satisfied,  inasmuch  as  twenty-two  years  had  elapsed 
without  any  demand  having  been  made  or  interest  paid  thereon. 
And  in  Geofrey  v.  Thorn,  Ibid.  88,  similar  relief  was  granted  for  the 
same  reason.  See  also,  Powell  v.  Godsale,  Finch  77,  and  Moyle  v. 
Lord  Roberts,  Nels.  9,  where  the  court  interposed  upon  the  same 
ground  and  gave  the  like  relief.  It  does  not  appear,  however,  that 
any  definite  period  of  time  was  fixed  upon  in  those  early  cases,  as 
being  sufficient,  where  the  creditor  ha\l  lain  by  without  making  a 
demand,  to  raise  the  presumption  of  payment.  But  after  this,  Lord 
Hale  appears  to  have  been  the  first  who  introduced  the  principle  into 
the  courts  of  common  law,  and  laid  down  the  rule,  that  a  lapse  of 
twenty  years  without  any  demand  made,  or  none  appearing  in  the 
case,  was  sufficient  to  raise  the  presumption  of  payment.  1  Term 
Rep.  271  ;  19  Fes.  196,  197  ;  Matthews  on  Pres.  Ev.  379.  In  this  he 
was  followed  by  Lord  Holt,  who,  in  1702,  held,  that  "where  a  bond 
for  payment  of  money  has  lain  dormant  twenty  years,  if,  in  an  action 
brought  thereon,  the  defendant  pleads  solvit  ad  diem,  the  plea  will 
be  good ;  for  it  is  a  strong  presumption  the  bond  has  been  satisfied, 
where  there  has  been  no  demand  made,  nor  action  brought  thereon  in 
so  long  a  time."  Anon.  Case,  1 1  Mod.  2.  And  in  Hothershill  v. 

. 


518  SUPREME  COURT  [Sunbury, 

[Summervillo  v.  Holliday  ] 

Sows,  6  Mod.  22,  in  the  next  year,  he  laid  it  down,  that  "  if  a  bond 
be  of  twenty  years  standing  and  no  demand  proved  thereon,  or  good 
cause  of  so  long  forbearance  shown  upon  solvit  ad  diem,  he  should  n> 
tend  it  paid."  Afterwards  it  was  recognized  in  Moreland  v.  Bennitt, 

1  Stran.  652,  and  in  Searle  v.  Lord  Barrington,  2  Stran.  826,  S.  C. 

2  Lord  Raym.  1371.     And  again,  in  Humphreys  v.  Humphreys,  3 
P.  Wms  396,  397.     In  1740,  in  Gratwick  v.  Simpson,  2  Alk.  144,  it 
is  reported,  that  "  the  judges  have  laid  it  down  now  as  an  invariable 
rule,  that  if  there  be  no  demand  for  money  due  upon  a  bond  for 
twenty  years,  that  tliey  will  direct  a  jury  to  find  it  satisfied  from  the 
presumption  arising  from  the  length  of  time."     Likewise,  in  Lemon 
v.  Newnham,  1  Ves.  51,  the  rule  is  laid  down  in  the  following  terms, 
"  where  no  demand  of  principal  or  interest  is  made  for  twenty  years, 
satisfaction  will  be  presumed."     And  in  Trash  v.  White,  3  Bro.  Ch. 
Rep.  291,  Lord  Thurlow  lays  it  down,  that  there  must  not  only  be 
nonpayment  of  interest  during  the  twenty  years,  to  ffuse  the  pre- 
sumption of  payment  of  the  principal,  but  no  demand.     So  in  the 
Winchelsea  causes,  4  Burr.  1963,  the  court  say,  "bonds  which  have 
lain  dormant,  shall  be  supposed  to  be  satisfied,  after  twenty  years." 
And  twenty  years  without  a  demand  being  made,  was  clearly  Mr 
Justice  Bullets  understanding  of  the  rule,  as  appears  from  what  he 
has  said  in  Oswald  v.  Legh,  1  Term  Rep.  271. 

Now,  these  authorities  all  prove  most  abundantly,  that  a  voluntary 
forbearance  or  acquiescence  on  the  part  of  the  creditor  or  obligee,  is 
the  very  reason  and  foundation  of  the  rule ;  but  where  there  has 
been  a  demand  or  a  suit  commenced,  no  matter  whether  in  proper 
form  or  not,  so  that  it  be  for  the  same  debt,  within  the  twenty  years, 
acquiescence  is  excluded  and  no  presumption  arises.  But  even  a  de- 
mand or  suit  is  not  necessary  to  prevent  the  rule  taking  place,  where, 
from  the  poverty  of  the  debtor,  they  would  prove  fruitless.  Nor  will 
the  presumption  arise,  where  the  debtor  has  been  absent  and  out  of 
the  reach  of  the  creditor,  or  where  the  creditor  himself  has  been 
abroad,  and  from  this  circumstance  no  opportunity  afforded  the 
debtor  of  making  payment.  In  Hillary  v.  Walker,  12  Fes.  266,  Lord 
Chancellor  Erskine,  in  speaking  of  a  bond,  says,  "  upon  twenty 
years,  the  presumption  is,  that  it  has  been  paid ;  and  the  presump- 
tion will  hold  unless  it  can  be  repelled  ;  unless  insolvency  or  a  state 
approaching  it  can  be  shown,  or  that  the  party  was  a  near  relation, 
or  the  absence  of  the  party  having  a  right  to  the  money,  or  some- 
thing which  repels  the  presumption,  that  a  man  is  always  ready  to 
receive  his  own."  Lord  Eldon,  also,  in  Fladong  v.  Winter,  19  Ves. 
200,  after  recognizing  J,he  rule,  says,  "  it  may  be  met  by  evidence  to 
satisfy  a  jury  that  the  debtor  had  not  the  opportunity  or  the  means  of 
paying."  And  the  case  of  Wynne  v.  Waring,  is  mentioned  there  as 
having  been  decided  on  this  latter  ground,  and  that  the  presumption 
did  not  arise,  although  more  than  fifty  years  had  passed.  So  in 
The  Mayor  of  Hull  v.  Homer,  Cowp.  109,  it  is  said  "  there  is  a  time 
when  a  jury  may  presume  the  debt  paid,  &c.,  but  if  a  witness  is 

* 


June  1833.]  OF  PENNSYLVANIA.  519 

[Summerville  v.  Holliday.] 

produced  to  prove  the  contrary,  as  by  showing  the. party  not  to  have 
been  in  circumstances  to  pay,  or  a  recent  acknowledgement  of  the  debt, 
the  jury  must  say  that  the  debt  is  not  paid."  And  the  opinion  of 
Lord  Ellenborough,  as  expressed  at  Nisi  Prius,  in  Willaume  v. 
Gorges,  1  Camp.  217,  which  seems  to  contravene  these  cases  so  far 
as  poverty  is  made  a  sufficient  excuse  for  not  prosecuting  a  suit 
against  the  debtor,  may  well  be  questioned  as  to  its  correctness.  But 
in  Newman  v.  Newman,  1  Stark.  N.  P.  81,  this  distinguished 
judge  held,  that  the  residence  of  the  defendant  in  America,  pre- 
vented the  presumption  from  arising,  and  most  positively  directed 
the  jury  to  this  effect,  by  saying  "  there  was  no  ground  for  the  pre- 
sumption." As  he  also  directed  them  in  the  immediately  preceding 
case  with  the  same  degree  of  positiveness,  "  that  under  the  circum- 
stances, the  inference  to  be  drawn  from  lapse  .of  time  was  not  rebut- 
ted, and  directed  the  jury  to  presume  that  the  judgment  had  been  dis- 
charged by  being  paid  off  or  released."  Thus  exercising,  as  it  ap- 
pears to  me,  not  only  an  authority  which  belongs  to  the  court,  but 
discharging  a  duty  which  it  is  bound  to  perform,  by  instructing  and 
directing  the  jury  as  to  the  sufficiency  of  the  circumstances  attend- 
ing the  lapse  of  the  twenty  years  to  rebut  the  presumption. 

Whether  the  presumption  arises  or  not,  does  not  then  depend  upon 
mere  lapse  of  time,  but  upon  acquiescence  and  other  circumstances 
connected  with  it ;  as,  for  instance,  in  the  case  of  the  enjoyment  of 
an  incorporeal  right  for  a  space  of  twenty  years,  that  alone  is  not 
sufficient ;  it  must  have  been  adverse,  exclusive  and  uninterrupted,  or 
acquiesced  in,  otherwise  the  presumption  of  a  grant  can  not  be  made. 
Strictlerv.  Todd,  10  Serg.  <$•  Rawle  68,  69.  So  in  the  case  of  a  bond, 
as  appears  from  the  cases  and  authorities  referred  to,  it  must  have 
lain  dormant  without  any  demand  made,  or  suit  brought,  or  interest 
paid  thereon,  or  acknowledgement  of  the  debt,  or  absence  of  the  party 
from  the  country,  or  inability  to  pay  during  the  period  of  the  twenty 
years;  otherwise  the  presumption  of  satisfaction  does  not  arise  and 
the  court  ought  so  to  instruct  and  direct  the  jury.  I  consider  the 
late  Chief  Justice  as  fully  supporting  this  doctrine  mJHiller  v.  Beates, 
3  Serg.  fy  Rawle  493,  when  he  says,  "there  is  no  positive  law  fixing 
a  presumption  of  the  payment  of  a  bond,  and  yet  if  the  interest  has 
remained  unpaid  for  twenty  years,  and  there  is  no  circumstance  ac- 
counting for  this  long  cessation  of  payment,  there  arises  so  strong  a 
presumption  of  the  satisfaction  of  the  debt,  that  the  jury  not  only 
may,  but  ought  to  presume  it,  and  unless  they  do  the  court  would  order 
a  new  trial."  And  again  in  Kingston  v.  Lesley,  10  Serg.  fy  Rawle 
389,  he  says,  "  where  the  facts  are  plain,  the  judge  may  with  great 
propriety  tell  the  jury  either  that  they  ought  or  ought  not  to  make  the 
presumption."  And  the  present  Chief  Justice  lays  it  down  in 
Henderson  v.  Lewis,  that  "  the  presumption  is  not  subject  to  the  dis- 
cretion of  the  jury,"  which  is  adopted  by  the  late  Mr  Justice  Duncan, 
in  Cope  v.  Humphreys,  14  Serg.  fy  Rawle  21,  and  is  considered  by 
him  a  presumption  of  law,  of  which  the  court  must  charge  the  jury  ; 


520  SUPREME  COURT  [Sunbury, 

[Summervillo  v.  Holliday.] 

and  that  to  avoid  it  when  requested,  would  be  error.  Beside,  in  this 
last  case,  page  22,  the  very  question,  whether  the  circumstances 
given  in  evidence  were  sufficient  or  not  to  prevent  the  presumption 
from  arising,  was  discussed  and  decided  on  by  this  court  as  one  of 
law :  and  the  court  say  the  only  circumstance  of  the  kind  pointed 
out  was,  that  one  of  the  conusors  of  the  judgment  had  been  defaulted 
on  two  nihils  returned,  as  to  the  effect  of  which  in  preventing  the 
presumption  from  arising  in  favour  of  the  administrators  of  the  conu- 
sors who  had  pleaded  to  issue,  the  court  below  was  not  requested  to 
give  any  opinion,  but  if  they  had,  "  it  should  have  been  an  opinion  di- 
rectly against  the  plaintiff."  I  also  consider  the  case  of  McDowell 
v.  M'Cultdugh,  17  Serg.  fy  Rawle  51,  as  establishing  fully  all  that  I 
contend  for — which  is,  that  it  must  be  left  to  the  jury  to  judge  of  the 
weight,  that  is,  the  credibility  of  the  evidence  tending  to  prove  the 
facts  or  circumstances,  relied  on  by  the  plaintiff,  to  rebut  the  pre- 
sumption and  to  account  for  the  delay  consistently  with  non  pay- 
ment of  the  debt,  and  to  determine  whether  they  have  been  proved 
or  not ;  but  whether,  when  found  by  the  jury  to  exist,  they  are  suffi- 
cient in  law  to  rebut  the  presumption  of  satisfaction  arising  from 
lapse  of  time,  is  a  question  upon  which  it  is  the  duty  of  the  court,  if 
requested  by  either  party,  to  give  their  opinion  and  instruct  the  jury. 
The  court  of  common  pleas,  in  that  case,  were,  among  other  things, 
requested  by  the  defendant  to  instruct  the  jury,  "  that  the  conver- 
sations detailed  in  evidence,  if  believed  by  the  jury,  do  amount  to 
such  an  acknowledgement  by  the  party  as  the  law  requires  to  destroy 
the  legal  presumption  ;"  upon  which  the  court  told  the  jury,  "  that 
they  would  not  say  that  the  conversations  detailed  in  evidence,  if 
believed  by  the  jury,  did  not  amount  to  such  acknowledgement  by 
the  party  as  the  law  requires  to  destroy  the  legal  presumption. 
That  that  depended  upon  the  weight  of  evidence,  of  which  they 
were  the  exclusive  judges.  That  in  the  opinion  of  the  court, 
whose  opinion  on  facts  is  not  binding  on  this  jury,  the  conversations 
detailed  in  evidence  do  amount  to  such  acknowledgement  by  the  defend- 
ant as  the  law  requires,  to  destroy  the  legal  presumption  of  payment 
of  the  single  bill."  Now  although  this  direction  of  the  common 
pleas  is  not  expressed  with  as  much  precision  and  perspicuity  as  it 
might  have  been,  yet  it  was  considered  by  this  court  as  a  positive 
direction  to  the  jury,  that  if  they  believed  in  the  truth  of  the  acknow- 
ledgement detailed  by  the  witness,  that  it  did  amount  to  such  acknow- 
ledgement by  the  defendant  as  the  law  required  to  destroy  the  legal  pre- 
sumption of  payment ;  and  as  such  it  was  approved,  and  the  verdict 
and  judgment  thereupon  given  affirmed  by  this  court :  for  the  late 
Mr  Justice  Duncan,  who  delivered  the  opinion  of  the  court  in  page  54, 
says,  "  the  court,  with  superabundant  caution,  say,  that  if  the  jury 
believe  the  acknowledgement  detailed  by  the  witness,  that  this  does 
amount  to  such  acknowledgement  by  the  defendant,  as  the  law  requires 
to  destroy  the  legal  presumption  of  payment,  but  still  instruct  them  of 
its  weight,  (not  legal  effect  if  believed)  they  must  judge."  I  am 


June  1833.]  OP  PENNSYLVANIA.  521 

[Summcrville  v.  Holliday.] 

aware  that  in  McLean  v.  Finley,  1  Penns.  Rep.  101,  where  an  action  of 
debt  had  been  brought  in  the  latter  end  of  1822,  upon  an  adminis- 
tration bond  given  in  March  1797,  and  the  filing  of  an  administra- 
tion account  in  the  register's  office  in  1805,  was  relied  on  by  the 
plaintiff  as  being  sufficient  in  law  to  rebut  the  presumption  of  satis- 
faction from  lapse  of  time,  the  Chief  Justice,  who  delivered  the  opinion 
of  the-  court,  said,  "  the  judge  who  tried  the  cause  very  properly  left 
the  effect  of  filing  the  account  to  the  jury,  as  a.  matter  purely  of  fact;" 
but  it  is  evident  from  the  whole  of  the  opinion  taken  altogether,  that 
this  court  affirmed  the  judgment  of  the  common  pleas,  because  they 
considered  the  filing  of  the  account  insufficient  in  law  to  rebut  the  pre- 
sumption ;  and  that  if  the  court  had  given  any  direction  as  to  the 
legal  effect  of  it,  it  ought  to  have  been  against  the  plaintiff,  who  could 
not,  therefore,  make  it  good  cause  for  reversing  the  judgment,  that 
they  had  declined  doing  so  but  left  it  to  the  jury  to  be  decided  by 
them. 

.  This  court  have  decided  and  have  so  directed,  as  matter  of  law, 
what  shall  be  sufficient  to  suspend  the  presumption  of  payment  aris- 
ing from  lapse  of  time.  This  was  done  in  Penrose  v.  King,  I  Yeates 
344,  one  of  the  first  cases,  involving  the  question,  that  we  have  re- 
ported ;  and  so  in  the  courts  of  the  United  States,  as  well  as  in  the 
state  courts.  In  Cottle  v.  Payne,  3  Day  292,  the  circuit  court  of  the 
United  States  charged  the  jury  in  the  following  words :  "if  twenty  years 
had  elapsed  since  the  cause  of  action  accrued,  we  think  the  circum- 
stances disclosed  by  the  plaintiff  are  such  as  to  remove  any  presumption 
of  payment"  And  in  Dunlap  v.  Ball,  2  Cranch  184, 185,  the  supreme 
court  of  the  United  States  reversed  the  judgment  of  the  circuit  court 
because  it  instructed  the  jury  that  "from  the  length  of  time  stated 
in  the  facts  agreed  on,  the  bond  in  law  is  presumed  satisfied,  unless 
they  should  find  from  the  evidence  that  interest  was  paid  on  the  bond 
within  twenty  years  from  the  5th  of  September  1775  (the  time  of 
the  last  payment),  or  that  a  suit  or  demand  was  made  on  it  within 
twenty  years  from  the  last  mentioned  time  ;"  instead  of  directing  the 
jury,  as  the  supreme  court  determined  the  circuit  court  ought,  "that 
as  twenty  years  had  not  elapsed,  exclusive  of  the  period  during  which 
the  plaintiffs  were  under  a  legal  disability  to  sue,  before  the  action 
was  brought,  the  presumption  of  payment  did  not  arise." 

But  it  has  been  said,  that  it  is  impossible  to  lay  down  any  general 
rule  by  which  the  circumstances  of  each  particular  case,  as  it  arises, 
can  be  decided  to  be  sufficient  or  insufficient  to  rebut  the  presump- 
tion of  payment  or  to  prevent  it  from  arising,  and  therefore  it  be- 
comes necessary  to  refer  the  matter  to  the  jury  to  be  decided  as  a 
question  of  fact  without  any  instruction  from  the  court.  I  am  not 
prepared  to  admit  the  truth  of  this  proposition  to  any  great  extent, 
and  much  less  the  force  of  it  as  a  reason  for  referring  the  question 
exclusively  as  a  matter  of  fact  to  the  decision  of  the  jury.  The  cases 
already  referred  to  show,  as  it  appears  to  me,  that  principles  or  rules 
have  been  laid  down  and  established  by  the  courts,  that  will  apply 
3Q 


522  SUPREME  COURT  [Stinbury, 

[Summorville  v.  Holliday.] 

to  and  govern  the  most  of  the  cases  that  can  arise  to  raise  the  ques- 
tion ;  and  if  any  should  occur  not  falling1  within  the  principles 
already  fixed  and  settled  by  adjudications  on  this  subject,  let  the  ex- 
istence of  the  facts  or  circumstances  of  which  evidence  may  be  given 
as  attending  it,  be  left  to  the  jury  to  be  decided  as  a  question  of  fact ; 
but  as  to  their  effect  in  law  if  found  by  the  jury  to  exist,  whether 
sufficient  or  not  to  prevent  the  presumption  of  satisfaction  frorn  aris- 
ing where  twenty  years  have  run,  it  belongs  to  the  court,  and  it  is 
its  duty  to  instruct  the  jury  ;  for  the  rule  itself,  raising  the  presump- 
tion of  payment,  being,  as  has  been  shown  already,  partly  artificial, 
founded  upon  principles  of  policy,  and  so  making  it  one  of  purely 
legal  character,  must  therefore,  in  its  application  to  cases  as  they  shall 
arise,  be  directed  entirely  by  the  court,  who  alone  can  be  presumed 
to  be  perfectly  acquainted  with  the  reason  and  foundation  of  the  rule, 
and  able  to  tell  the  jury  whether  the  facts  and  circumstances,  of 
which  evidence  may  be  given  if  found  to  exist,  will  set  aside,  the 
reason  of  the  rule,  and  if  so  that  the  rule  is  inapplicable  to  the  case  ; 
cessante  ralione,cessat  et  ipsa  lex;  otherwise  it  will  be  utterly  impossible 
to  preserve  consistency  and  uniformity  in  the  decisions  that  must  be 
made  on  this  subject,  and  to  prevent  it  from  remaining  a  question 
that  cannot  be  solved  by  settled  principles  of  law,  and  of  necessary 
consequence  an  endless  source  of  litigation.  Having  shown  now,  I 
conceive,  as  well  from  the  reason  of  the  rule  as  from  the  authorities 
by  which  it  has  been  established,  that  it  belongs  to  the  court  and 
not  to  the  jury,  under  a  given  state  of  facts  or  circumstances,  to 
direct  the  application  and  fitness  of  it,  I  come  to  consider  the  nature 
of  the  plaintiff's  claim  in  this  action,  and  the  applicability  of  the  rule 
to  it  under  the  circumstances'existing,  in  connexion  with  the  great 
length  of  time  that  has  elapsed  since  it  became  payable.  It  being 
for  a  legacy  charged  upon  land  devised  by  the  testator,  is  clearly  not 
within  our  act  of  limitations,  but  may,  I  think,  be  considered  obnox- 
ious to  the  presumption  of  payment  after  a  great  length  of  time, 
without  being  demanded  by  the  legatee,  or  attended  with  other  cir- 
cumstances showing  that  it  has  not  been  paid,  as  will  appear  from 
the  following  cases.  Fotherby  v.  Hartridge,  2  Fern.  21  ;  Cusse  v. 
Jlsh,  Finch  316 ;  Jones  v.  Turberville,  2  Ves.  Jun.  12,  and  Lewis  v.  Lord 
Teynham,  cited  therein,  Ibid.  13;  4  Bro.  Ch.  Rep.  116;  2  Ves.  Jun. 
280,  per  Lord  Jllvanley  ;  Jlrden  v.  Jlrden,  •  1  Johns.  Ch.  Rep.  313; 
Kane  v.  Bloodgood,  7  Johns.  Ch.  Rep.  90 ;  Winstanley  v.  Savage,  2 
M>  Cord's  Ch.  Rep.  437. 

The  same  principles  of  policy  and  convenience  in  connexion  with 
the  motives  which  usually  govern  men  in  their  dealings  and  inter- 
course with  each  other,  and  which  gave  birth  to  the  rule  that  in  its  ope- 
ration extinguishes  bonds,  judgments  and  mortgages  after  a  lapse  of 
twenty  years,  seem  to  make  it  equally  necessary  as  well  as  applicable 
for  the  like  purpose  to  the  cases  of  legacies  charged  upon  real  estate. 
I  therefore  think  if  twenty  years  be  suffered  to  pass  by  after  the 
legacy  has  become  payable  without  any  steps  being  taken  to  enforce 


June  1833.]  OF  PENNSYLVANIA.  523 

[Summerville  v.  Holliday.] 

the  payment  of  it,  and  the  delay  unaccounted  for  consistently  with 
non  payment,  it  ought  to  be  con  side  red  prima  facie  evidence  of  pay- 
ment, and  that  the  court,  upon  the  trial  of  the  action  brought  after- 
wards to  recover  it,  ought  so  to  instruct  and  direct  the  jury. 

Believing  that  the  case  of  M'Cullough  v.  Montgomery,  7  Serg.  fy 
Rawle  17,  could  not  be  easily  distinguished  from  the  present  in  prin- 
ciple; I  purposely  omitted  bringing  it  into  view  until  now,  that  I 
might  the  more  fully  compare  the  one  with  the  other.  That  was 
an  action  of  debt  upon  a  penal  bill  dated  14th  October  1779,  given 
by  George  M'Cullough  to  Jane  Montgomery  one  of  the  plaintiffs  (then 
Jane  Grubb),  in  the  penalty  of  300  pounds,  conditioned  for  the  pay- 
ment to  the  said  Jane  of  her  legacy  as  mentioned  in  her  father's  will, 
to  the  full  satisfaction  of  her  mother  the  widow  Grubb;  immediately 
after  giving  this  bill  M'Cullough  married  the  widow,  who  was  sole 
executrix  of  Thomas  Grubb  the.  testator's  will.  By  it  150  pounds, 
besides  some  articles  of  property,  were  bequeathed  to  Jane  his 
daughter,  the  plaintiff,  when  she  came  to  the  age  of  eighteen  years, 
which  would  not  be  until  August  1783.  It  does  not  appear  from 
the  report  of  the  case  when  that  action  was  commenced,  but  it  was 
not  until  after  1806,  when  more  than  twenty-three  years  had  run 
from  the  time  that  the  legacy  became  payable  and  the  bond  forfeit- 
ed. During  this  interim  however,  to  June  term  1798  of  Montgomery 
county  court  of  common  pleas,  about  fifteen  years  after  the  legacy 
had  become  payable,  the  legatee  brought  her  first  action  for  the  re- 
covery of  it  against  George  M'Cullough  and  his  wife  executrix  of 
Thomas  Grubb  deceased,  the  testator,  which  was  abated  after- 
wards by  her  intermarriage  with  David  Montgomery;  when  he 
brought  another  action  in  their  joint  names  to  recover  the  legacy 
against  the  same  in  the  same  court  to  August  term  1806.  Pending 
this  last  suit  George  M'Cullough  died,  and  the  plaintiffs  sued  out  a 
writ  of  scire  facias  against  his  executor  to  make  him  a  party  to  it. 
The  records  of  these  suits  and  proceedings  had  therein,  after  being 
objected  to  by  the  defendant's  counsel,  were  all  given  in  evidence  by 
the  plaintiffs,  to  rebut  the  presumption  of  payment  which  was  claimed 
by  the  defendant  to  have  arisen  from  lapse  of  time.  After  the  evi- 
dence was  closed  on  the  trial,  the  court,  among  other  matters,  were 
requested  by  the  defendant,  "  to  charge  the  jury  that  the  bond  sued 
upon  in  that  cause,  ought  to  be  presumed  satisfied  by  the  jury  under 
the  evidence  given;  and  that  there  was  no  evidence  to  impugn  the  legal 
presumption  that  the  bond  was  satisfied  from  its  age."  In  reply  to 
this,  the  president  judge  of  the  court  told  the  jury,  that  "  the  suits  for 
the  legacy,  being  instituted  against  the  person  who  was  also  the  obli- 
gor in  the  bond,  would  have  the  same  effect  as  a  suit  for  the  amount 
of  the  bond  given  for  the  payment  of  the  legacy  ;  and  take  the  case 
out  of  the  presumption  which  the  law  would  otherwise  raise  in  conse- 
quence of  the  lapse  of  time.  But  it  is  for  you  to  decide  upon  the 
facts.  If  you  are  of  opinion  that  there  is  no  evidence  in  this  case  to 
impugn  the  legal  presumption  that  the  bond  is  satisfied  from  its  age, 


524  SUPREME  COURT  [Sunbury, 

[Snmmcrvillo  v.  Holliday.] 

your  verdict  will  be  in  favour  of  the  defendant.  But  if  you  are  of 
opinion  that  the  legal  presumption  of  payment  is  repelled  by  the 
evidence,  your  verdict  ought  to  be  in  favour  of  the  plaintiffs  for  the 
amount  of  the  legacy."  Upon  this  charge  to  the  jury,  this  court  gave 
the  followingopinion  delivered  by  the  late  Chief  Justice.  "In  general, 
where  a  debt  is  due  on  a  bond,  and  twenty  years  elapse,  without  any 
payment  of  principal  or  interest  or  any  demand  of  payment  by  the 
obligee,  it  must  be  presumed  that  the  debt  is  paid,  because  it  is  con- 
trary to  (he  usual  course  of  human  affairs,  that  a  creditor  should  ac- 
quiesce so  long  without  receiving  satisfaction.  But  the  presumption 
ceases  when  it  appears  that  the  creditor  has  not  acquiesced,  but  en- 
deavoured to  obtain  payment.  Now  in  the  first  place,  although  this 
penal  bill  bears  date  in  October  1779,  yet  the  legacy  secured  by  it 
was  not  payable  till  the  8th  of  August  1783,  when  Jane  Grubb  the 
legatee  arrived  at  the  age  of  eighteen  years.  Counting  from  that 
period,  it  appears,  that  after  the  expiration  of  only  fifteen  years  Jane 
Grubb  commenced  an  action  of  debt  against  George  JM'Cullough  and 
his  wife  for  the  recovery  of  her  legacy.  This  suit  was  brought  to 
February  term  1798,  and  abated  by  the  plaintiffs  marriage  with  her 
present  husband  David  Montgomery.  The  action  was  renewed  by 
the  present  plaintiffs  against  George  JWCullough  and  his  wife  to 
August  term  1806;  and  from  that  time  to  the  present  moment, 
the  plaintiffs  have  been  endeavouring  to  obtain  payment  of  the 
legacy,  either  by  an  action  of  debt  in  which  the  legacy  was  de- 
manded, or  by  an  action  on  the  penal  bill  of  George  JW  Cullough. 
It  is  immaterial  which  form  of  action  was  used,  for  in  either  the 
recovery  of  the  legacy  was  the  object  of  the  suit.  When  the  presi- 
dent of  the  court  of  common  pleas  left  it  to  the  jury,  to  determine 
upon  this  evidence,  whether  the  usual  presumption  arising  from 
length  of  time  was  not  rebutted  by  the  circumstances  of  the  case, 
he  charged  more  favourably  to  the  defendant  than  he  had  any  right 
to  expect,  for  the  charge  might  very  properly  have  been,  that 
taking  all  things  into  consideration  no  presumption  of  payment  arose" 
Here  then  it  is  expressly  ruled,  where  a  bond  was  given  to  secure 
the  payment  of  a  legacy  not  charged  upon  land,  that  an  action  of 
debt  commenced  against  the  executrix  of  the  will  of  the  testator  for 
the  legacy  and  not  on  the  bond,  fifteen  years  after  the  legacy  and 
the  bond  became  payable,  which  being  terminated  ineffectually  by 
the  plaintiff's  own  act  in  getting  married,  she  and  her  husband  com- 
menced a  new  action  in  their  joint  names  against  the  executrix  of 
the  testator  for  the  legacy,  but  still  not  on  the  bond,  twenty-three 
years  after  it  became  payable  ;  prevented  the  presumption  from  aris- 
ing, in  an  action  brought  afterwards  on  the  bond  itself  against  the 
obligor,  that  it  was  paid.  This  decision  is  not  only  in  perfect  accord- 
ance with  the  true  spirit  and  reason  of  the  rule,  but  sustained  by  all 
the  authorities  that  have  been  mentioned,  as  it  appears  to  me,  on 
the  subject.  The  rule  is  founded  upon  acquiescence,  and  without 
this  for  the  space  of  twenty  years  there  can  be  no  presumption  raised 


June  1833.]  OF  PENNSYLVANIA.  525 

[Summerville  v.  Holliday.] 

of  payment.  Endeavouring  to  recover  the  money,  whether  by  a 
proper  or  improper  course  of  proceeding,  within  the  period  of  twenty 
years,  negatives  acquiescence,  and  of  course  there  can  be  no  presump- 
tion. Who  then  could  have  doubted  after  this  decision,  that  this 
court  would  not  have  held  it  error  ih  the  court  below,  when  requested 
by  the  plaintiff  to  charge  the  jury  in  conformity  to  the  principles  of  it, 
not  only  to  refuse  to  do  so,  but  to  submit  the  question  expressly  to 
the  jury,  to  be  decided  by  them  according  to  their  notions,  whatever 
they  might  be  1  I  must  confess  for  myself,  that  I  could  not  have 
expected  it.  The  president  judge,  in  this  case,  with  the  case  of 
M'Cuttoughv.  Montgomery  in  hand,  and  after  reading  it  to  the  jury, 
says  to  them,  "on  the  authority  of  it  the  plaintiff's  counsel  contend, 
we  should  instruct  you  that  the  presumption  of  payment  is  rebutted, 
and  repudiated  in  point  of  law.  This  instruction  we  do  not  give.  We 
leave  it  to  you  to  determine  this  from  the  evidence,  whether  the  usual 
presumption  arising  from  length  of  time  is  not  rebutted  by  the  circum- 
stances of  these  ejectments,  the  suit  for  the  legacy,  the  report  of  the 
auditors,  and  all  the  other  facts  proved  in  the  cause."  Now  all  this 
appears  to  me  to  be  in  direct  contradiction  to  the  letter  and  spirit  of 
the  decision  in  M'Cullough  V.Montgomery,  as  well  as  every  analogous 
principle  of  law.  If  there  be  any  difference  between  that  case  and 
the  one  before  us,  it  is  that  there  is  less  room,  if  possible,  left  for  the 
presumption  to  arise  in  the  latter  than  in  the  former.  The  first  was 
before  this  court  in  1821,  thirty-eight  years  after  the  bond  became 
payable,  without  any  demand  being  made  of  the  debt  until  fifteen 
years  after  it  fell  due,  when  a  suit  was  commenced,  not  on  the  bond, 
but  for  the  legacy  against  the  executrix  of  the  testator,  against  whom 
an  action  of  debt  is  given  for  the  recovery  of  it  by  our  act  of  assem- 
bly, but  was  abated  by  a  voluntary  act  of  the  plaintiff  herself,  who 
however  renewed  it  immediately,  and  the  claim  kept  alive  thus  by 
a  succession  of  suits,  which  may,  for  aught  we  know,  be  still  pend- 
ing and  undetermined.  In  the  present  case  the  legacy  was  payable 
in  1798,|thirty-five. years  ago,  and  a  suit  brought  for  the  recovery  of  it 
in  two  years  afterwards  against  the  devisee  of  the  land  upon  which 
it  was  charged,  the  only  person  then  in  being  who  was  bound  to 
pay  it.  This  suit  was  pending  till  1832,  when  it  was  brought  on  ta 
trial  and  decided  against  the  plaintiff,  because  the  executors  of  the 
testator  had  not  been  made  defendants  with  the  devisee  of  the  land, 
that  the  interest  of  the  creditors  of  the  testator's  estate,  if  there  were 
any,  might  be  protected.  Holliday  v.  Summerville,  3  Penns.  Rep.  533. 
This  action  continuing,  the  claim  was  then  brought,  immediately  after 
the  termination  of  the  first  to  the  next  term  in  the  same  court,  and 
thus  the  demand  for  the  legacy  has  been  continued  and  kept  alive 
without  ceasing  by  actions  in  immediate  succession  without  the 
least  intermission,  which  is  the  most  efficacious  manner  known  to 
the  law  of  doing  it,  in  order  to  repel  all  presumption  of  a  discharge. 
In  the  case  before  us,  the  delay  in  not  bringing  the  first  suit  to 


526  SUPREME  COURT  [Sunbury, 

[Summerville  v.  Holliday.] 

trial  before  1832,  is  fully  accounted  for,  as  I  shall  show  in  the  sequel, 
by  the  report  of  the  auditors ;  while  the  delay  in  not  bringing  the 
first  suit  commenced  in  the  case  of  Mrs  Montgomery  in  1798,  to 
trial  before  1806,  after  a  lapse  of  eight  years,  when  it  abated  by  a 
voluntary  act  of  her  own,  and  again,  in  not  bringing  the  new  suit 
commenced,  upon  her  marriage  in  1806,  by  her  and  her  husband  to 
trial  before  1821,  after  a  further  delay  of  fifteen  years  more,  is  unac- 
counted for.  This  may  serve  to  show,  that  so  far  as  vigilance  in  the 
prosecution  of  suits  commenced  has  any  tendency  to  rebut  the  pre- 
sumption of  payment,  it  is,  as  respects  these  two  cases,  in  favour  of 
the  one  under  consideration.  But  it  seems  clear  to  me,  from  the 
case  of  JH'Cullough  v.  Montgomery,  that  this  court  held  and  ad- 
judged the  pendency  of  the  actions,  whether  brought  in  proper  form 
or  not,  so  that  they  were  for  the  same  debt  or  claim,  to  be  sufficient 
in  law  to  prevent  the  presumption  of  satisfaction  from  arising ;  no 
matter  what  length  of  time  was  suffered  to  intervene  between  the 
commencement  of  the  first  action  and  the  trial  of  it,  or  of  the  second 
or  last,  provided  the  first  were  commenced  within  the  period  of 
twenty  years  after  the  debt  became  payable,  and  the  second  imme- 
diately upon  the  termination  of  the  first,  without  its  being  tried  on 
the  merits.  This  appears  also  to  be  in  perfect  accordance  with  the 
reason  and  foundation  of  the  rule,  which  takes  place  only  where 
there  is  acquiescence  on  the  part  of  the  creditor,  but  which  is  com- 
pletely excluded  by  his  commencing  suit  within  the  twenty  years, 
and  persisting  in  the  renewal  of  it,  and  keeping  it  pending  until  he 
can  have  a  trial  on  the  merits. 

It  is  also  supported  by  the  opinions  and  decisions  of  not  only  the 
highest  and  most  respectable  judicial  characters,  but  of  courts  of 
dernier  resort.  In  Gifford  v.  Hort,  I  Sch.  fy  Lef.  386,  it  was  held  by 
Lord  Chancellor  Redesdale,  that  a  lapse  of  forty  years,  during  which 
period  a  suit  was  pending,  and  not  abated,  but  remaining  in  such  a 
situation  that  the  defendant  might  at  any  time  have  applied  to  dis- 
miss the  bill  if  he  had  thought  fit,  would  neither  raise  a  presump- 
tion in  favour  of  the  defendant,  nor  yet  furnish  ground  to  impute 
laches  to  the  plaintiff.  The  bill  referred  to  in  that  case,  which  had 
been  pending  so  long,  was  commenced  in  1763,  by  a  mortgagor,  for 
the  redemption  of  the  mortgaged  premises  against  the  mortgagee, 
who  had  taken  possession  of  them  twelve  years  before  that.  The 
bill  was  amended  in  1764,  without  any  further  proceeding  being 
had  on  it  till  1799,  a  space  of  thirty-five  years,  when  the  first  com- 
plainant having  died  in  the  interim,  a  bill  of  revivor  was  filed  by  the 
person  next  in  interest,  which,  after  issue  joined  between  the  parties, 
was,  upon  hearing,  dismissed,  in  March  1802.  Immediately  after 
this  dismissal  of  the  bill  of  revivor  the  complainant  therein  died,  and 
a  bill  of  revivor  was  filed  by  the  person  next  entitled  to  the  estate, 
under  the  limitations  contained  in  a  deed  of  settlement,  praying  in 
like  manner  as  the  former  bills  did,  that  upon  payment  of  what 
should  appear  to  be  justly  due  on  the  mortgage,  the  mortgaged 


June  1833.]  OF  PENNSYLVANIA.  527 

[Summerville  v.  Holliday.] 

premises  might  be  reconveyed  discharged  thereof.  This  was  the 
bill  upon  which  a  hearing  was  had  before  Lord  Redesdale  ;  and  from 
the  facts  of  the  case,  it  would  appear  that  the  mortgagee  had  been 
in  the  possession  of  the  mortgaged  premises  upwards  of  fifty  years, 
but  with  the  exception  of  the  first  twelve  years,  bills  with  very  short 
intervals  for  the  redemption  of  the  estate  had  been  pending,  yet  Lord 
Redesdale  said,  "  very  little  difficulty  on  the  ground  of  the  lapse  of 
time  would  strike  my  mind  in  making  this  decree,"  although  the 
mortgagee  had  been  in  possession  of  the  mortgaged  estate  nearly 
three  times  as  long  as  it  would  have  been  necessary  to  have  ren- 
dered his  estate  absolute  had  his  possession  been  acquiesced  in. 
And  in  Cane  v.  Mien,  2  Daw's  P.  Ca.  289 ;  where  a  suit  had  proceeded 
as  far  as  bill,  answer  and  replication,  but  after  that,  no  further  steps 
were  taken  in  the  cause  for  upwards  of  twenty  years ;  the  house 
of  lords  adjudged  that  this  alone  was  not  enough  to  warrant  their 
lordships  in  refusing  a  specific  performance,  there  being  acquiescence  on 
both  sides.  Also,  in  Moore  v.  Blake,  4  Dow's  P.  Ca.  230  ;  the  house 
of  lords  held,  that  if  a  bill  be  filed  in  due  time,  delay  in  prosecuting  the 
suit  will  not  bar  the  plaintiffof  relief,  and  reversed  the  decree  of  Lord 
•Manners,  who  had  dismissed  the  bill  of  the  plaintiff,  a  mortgagor, 
for  redemption;  because,  although  having  filed  his  bill  in  1782,  in 
due  time,  yet  he  had  done  nothing  more  in  it  till  1801,  when  he  filed 
an  amended  bill  for  the  revival  of  the  first,  which  he  brought  to  trial 
in  1808,  when  it  was  dismissed,  as  has  been  stated,  by  Lord  Man- 
ners, for  the  delay,  and  is  reported  in  1  Ball  fy  Beat.  62. 

Keeping  these  principles  in  view,  let  us  see  when  the  first  suit 
was  commenced  for  the  legacy  in  question,  and  how  it  has  been 
continued  and  renewed,  and  the  claim  for  it  persisted  in  from  that 
time  down  to  the  present.  Although  thirty-four  years  had  run  from 
the  time  that  it  became  payable,  before  this  action  was  commenced 
to  recover  it,  yet  in  less  than  two  years  after  it  became  payable,  a 
suit  was  commenced  by  the  plaintiff  and  her  husband  James  Sum- 
merville, then  living,  but  since  dead,  to  August  term  1800,  in  the 
court  of  common  pleas  of  Huntingdon  county,  against  William  Hol- 
liday, the  devisee  and  terre  tenant  of  the  land,  charged  with  the 
payment  of  the  legacy,  to  recover  one-third  thereof,  which  they  con- 
sidered their  aliquot  proportion  of  it.  On  the  17th  of  January  1804, 
that  suit,  by  agreement  of  the  parties,  was  referred  to  five  arbitrators, 
and  continued  under  this  rule  of  reference  until  the  22d  of  January 
1805,  when  three  of  them  made  a  report  to  the  court,  which  was 
filed,  setting  forth,  that  after  examining  the  cause  at  some  length, 
they  were  of  opinion  that  a  final  decision  of  it  could  not  then  be 
made,  without  doing  injustice  to  the  parties,  as  ejectments  were 
then  pending  for  the  recovery  of  a  great  part,  if  not  all  the  land  upon 
which  the  legacy  was  charged,  and  therefore  they  had  come  to  the 
conclusion,  that  no  just  determination  could  be  made  of  the  suit  for 
the  legacy,  until  decisions  were  had  in  the  actions  of  ejectment,  re- 
ferring to  them  by  the  names  of  the  respective  parties  therein,  to  wit: 


528  SUPREME  COURT  [SvnJbury, 

[ Summer villo   v.  Holliday.] 

The  Lessee  of  Henry  Drinker  v.  Holliday,  and  The  Lessee  of  E. 
Nicholas  and  ,7.  Nicholas,  severally  against  the  same.  The  suit  by 
Drinker's  Lessee  was  not  determined  until  October  1811,  when  it 
was  decided  in  favour  of  William  Holliday,  the  devisee ;  and  the 
last  of  the  suits  with  the  Nicholas's  not  until  the  year  1831,  when 
it  was  settled  by  a  compromise  between  the  person  claiming  under 
the  Nicholas  title,  and  William  Holliday,  the  defendant  in  this 
action,  claiming  the  land  under  the  title  of  William  Holliday,  the 
devisee,  who  died  in  1819,  leaving  it  to  him  by  will.  Immediately 
after  these  actions  of  ejectment  were  thus  settled,  William  Holliday, 
the  defendant  in  this  action,  being  in  the  possession  of  the  land  by 
a  devise  of  it  to  him  under  the  will  of  the  first  devisee,  was,  by  a  writ 
of  scire  facias  sued  out  by  the  plaintiffs  in  the  first  action  for  the 
legacy,  made  a  party  to  it  in  place  of  the  first  devisee,  then  dead. 
On  the  12th  of  March  1832,  that  action  was  brought  to  trial,  and 
the  court,  in  conformity  to  a  decision  of  this  court,  held  that  it  could 
not  be  supported,  because  the  personal  representatives  of  the  first 
testator  were  not  made  co-defendants  in  it. 

The  commencement  of  the  action  for  the  legacy  in  1800,  against 
William  Holliday,  the  first  devisee  of  the  land,  charged  with  the 
payment  of  it,  and  the  circumstances  attending  the  pendency  of  it, 
down  to  its  termination,  are  sufficient  in  law,  without  doubt,  to  pre- 
vent or  rebut  the  presumption  of  payment  before  this  last  period. 
It  has  ever  been  held,  as  we  have  seen  from  the  cases  cited,  that  a 
suit  commenced  within  the  twenty  years  to  recover  the  debt  or 
claim,  and  a  prosecution  of  it  without  any  unaccountable  delay,  are 
sufficient  for  this  purpose.     When  I  say  without  any  unaccountable 
delay,  I  think  that  I  am  conceding  what  the  authorities  on  the  sub- 
ject do  not  seem  to  require  and  at  least  as  much  as  in  reason  can 
be  demanded  by  the  most  rigid  advocate  of  the  rule  ;  but  still,  even 
with  this  qualification,  that  a  suit  or  suits  commenced  shall  be  pro- 
secuted "  without  any  unreasonable  delay,"  I  think  I  shall  show 
most  clearly,  that  the  lapse  of  time  when  that  first  suit  was  tried  in 
March  1832,  could  not  have  defeated  the  plaintiff's  recovery  of  the 
legacy  in  question.     It  was  pending,  it  is  true,  a  long  time  beyond 
what  is  usual  in  some,  and  I  would  fain  hope,  in  all  of  the  counties 
of  the  state ;  but  this  delay  appears  to  be  satisfactorily  accounted  for 
by  the  report  of  the  arbitrators,  who  thought,  that  if  the  devisee  of 
the  land  should  lose  any  portion  of  it  in  the  actions  of  ejectment  then 
pending  against  him  for  it,  that  there  ought  to  be  a  proportional 
abatement  of  the  legacy,  and  therefore  reported  as  they  did,  that  the 
suit  for  the  legacy  could  not  be  justly  and  finally  decided,  until  the 
contest  about  the  devisee's  title  to  the  land  ended.     This  report, 
although  not  binding  upon  the  parties,  and  perhaps,  at  most,  could 
only  be  regarded  as  a  strong  recommendation  coming  from  judges 
of  their  own  choosing,  to  delay  pressing  the  suit  or  claim  for  the 
legacy,  until  the  title  to  the  land  should  be  settled ;  yet  it  seems  to 
have  had  in  it  something  so  reasonable,  equitable  and  just,  that  I  am 


«ne  1S33.]  OF  PENNSYLVANIA.  529 

[Summerville  v.  Holliday.] 

inclined  to  think,  that  the  plaintiffs  in  that  action  would  have  been 
censurable  if  they  had  not  acquiesced  in  it.  Both  parties,  however, 
acquiesced,  and  the  plaintiffs  forbore  the  further  prosecution  of  their 
suit  for  the  legacy,  but  not  a  moment  longer  than  until  the  actions 
of  ejectment  were  all  settled,  by  which  it  is  said,  about  one-sixth  of 
the  land  was  lost  by  Holliday.  This  delay  then  being  perfectly 
consistent  with  the  non  payment  of  the  legacy,  and  being,  as  I  con- 
ceive, for  reasons  too,  that  ought  not  to  be  overlooked  in  the  admin- 
istration of  justice,  in  order  that  a  more  just  and  equitable  decision 
might  be  made  in  regard  to  the  legacy,  whether  the  whole  or  only 
a  proportion  of  it  should  be  paid  ;  ought,  instead  of  being  looked  upon 
as  a  circumstance  that  could  prejudice  the  plaintiff's  claim,  to  be 
considered  as  operating  greatly  in  her  favour ;  and  goes  to  show 
most  clearly  that  the  delay  in  prosecuting  the  action  did  not  take 
place  because  the  legacy  was  satisfied  or  discharged  in  any  way, 
but  because  the  amount  that  ought  in  equity  and  justice  to  be  paid, 
could  not  be  ascertained  until  it  should  be  known  first,  how  much  of 
the  land  charged  with  the  payment  of  it,  which  formed  the  considera 
tion  for  the  devisee's  paying,  could  be  held  by  the  devisee  of  it 
under  the  testator's  title.  The  plaintiff's  delay  then  being  for  a 
reasonable  cause,  ought  not,  therefore,  as  Lord  Chief  Baron  Eyre  said, 
in  Toplis  v.  Baker,  2  Cox  123,  to  be  turned  against  her.  It  may  be 
well  considered  in  effect,  as  if  an  agreement  had  been  made  between 
the  parties,  that  the  trial  of  the  suit  for  the  legacy  and  the  payment 
of  it,  should  be  deferred  until  it  was  decided  how  far  the  title  which 
the  testator1  had  for  the  land  was  good,  and  how  much  of  it  his  de- 
visee should  be  able  to  hold  under  that  title.  Now,  it  cannot  be 
pretended  that  lapse  of  time,  however  great,  though  it  were  a  cen- 
tury, will  raise  the  slightest  presumption  of  payment  before  the  debt 
by  the  terms  of  the  obligation  has  become  payable,  or  as  long  as,  by 
the  agreement  of  the  parties,  it  can  be  shown  that  it  has  been  post- 
poned. It  is  only  after  the  time  for  payment,  either  by  the  original 
terms  of  the  obligation  or  the  subsequent  agreement  of  the  parties, 
has  arrived,  that  the  twenty  years  commence  running  ;  for  until 
that,  delay  cannot  become  irreconcilable  or  inconsistent  with  nou 
payment.  The  report  of  the  arbitrators  and  its  reasonable  influence 
upon  the  parties,  who  appear  both  to  have  acquiesced  in  it,  therefore, 
not  only  accounts  fully  and  satisfactorily  for  the  delay  that  took 
place,  in  not  bringing  the  first  action  for  the  legacy  to  a  trial  at  an 
earlier  day,  but  most  powerfully  rebuts  all  presumption  of  the  legacy 
having  been  satisfied  in  any  way,  and  the  court  below  ought,  as  it 
appears  to  me,  to  have  so  instructed  the  jury. 

If,  then,  the  presumption  of  payment  did  not  arise  and  could  not 
have  availed  any  thing  in  this  first  suit  thus  delayed  and  tried  in 
March  1832,  as  I  think  I  have  shown  that  it  could  not,  I  am  unable 
to  perceive  upon  what  principle  it  is,  that  it  can  be  interposed  in  this 
action,  which  was  commenced  to  the  next  succeeding  term  of  the 
court,  and  as  early  as  it  was  possible  after  the  termination  of  the  first. 

3R 


530  SUPREME  COURT  [Sunbury, 

[Summcrvillc  v.  Holliday.] 

The  first,  it  must  be  observed,  was  decided  in  favour  of  the  defend- 
ant, not  upon  the  ground  that  the  legacy  had  been  satisfied,  but 
upon  a  technical  objection  that  the  executors  of  the  testator  had  not 
been  made  parties,  as  well  as  the  devisee  of  the  land,  to  the  suit,  so 
that  the  interest  of  the  creditors  of  the  estate  of  the  testators  might 
be  protected.  This  objection  was  taken  and  sustained  upon  the 
authority  of  a  decision  of  this  court  settling  the  manner  in  which 
actions  for  the  recovery  of  legacies,  charged  upon  land,  should  be 
brought  and  prosecuted,  made  long  after  that  suit  had  been  com- 
menced ;  and  indeed  but  a  short  time  before  the  trial  of  it  came  on. 
And  it  would  seem  to  me  that  this  court  is  bound  not  to  permit  any 
rule,  which  it  may  have  established,  to  defeat  a  party  of  his  right, 
because  that  he  happened  to  commence  his  action  in  a  different  form 
or  manner  from  that  subsequently  settled  on  by  the  court.  The  first 
action  was  brought  against  the  party  to  whom  the  land  was  devised, 
provided  he  would  pay  the  legacy.  It  must  be  admitted  by  all  that 
he  was  the  only  person  who  had  any  interest  in  discharging  it,  and 
if  he  did  not  do  it,  it  was  scarcely  within  the  range  of  possibility, 
much  less  of  presumption,  that  any  body  else  would  ;  hence,  the 
circumstance  of  his,  or  that  of  his  devisee,  taking  advantage  of  the 
technical  objection  to  the  manner  in  which  the  suit  was  brought,  in 
order  to  get  clear  of  it,  if  it  is  to  weigh  any  thing  in  this  case,  that 
it  was  decided  in  favour  of  the  defendant,  goes  to  show  that  payment 
or  satisfaction  of  the  legacy  had  never  been  made,  otherwise  it  would 
have  been  made  the  ground  of  defence  instead  of  an  objection  that 
was  purely  technical,  after  a  lapse  of  so  many  years  from  the  death 
of  the  testator,  when  the  claims  of  creditors  could  not  have  existed 
without  being  known,  by  suits  having  been  commenced  for  them. 
Seeing  then  that  the  first  action  was  thus  terminated  against  the 
plaintiff,  without  any  default  on  her  part,  and  the  present  one  there- 
upon commenced  immediately,  it  ought  to  be  considered  a  continu- 
ation of  the  first  by  journey's  accounts,  or  at  least  of  the  demand  of 
the  legacy  by  suit,  which  is  sufficient  to  exclude  the  presumption  of 
payment  arising  from  lapse  of  time,  as  the  claim  for  it  was  not  suf- 
fered to  lie  dormant,  nor  acquiesced  in  by  the  plaintiff.  Spencer's  case, 
6  Co.  10,  11  ;  Dalison  3.  And  to  this  effect  the  court  ought  to  have 
instructed  the  jury.  But  such  direction  it  refused,  positively,  to  give  ; 
and  instead  thereof,  directed  the  jury  that  they  must  not  only  decide 
upon  the  existence  of  all  these  circumstances,  but  likewise  upon  their 
sufficiency  in  law  to  rebut  the  presumption  of  payment.  Thus  leav- 
ing it  to  the  jury  to  decide  a  mixed  question  of  law  and  fact,  accord- 
ing to  their  own  notions,  without  any  further  direction  from  the  court 
in  regard  to  it.  This  doctrine  appears  to  me  to  be  pregnant  with 
inconceivable  mischief,  and  utterly  repugnant  to  every  principle  of 
law  on  the  subject ;  and,  therefore,  erroneous,  and  such  as  I  can  not 
accede  to. 

It  is  said  that  some  fifty  or  sixty  acres  of  the  land  charged  with 
the  legacy  were  recovered  from  the  devisee,  or  those  claiming  under 


June  1833.]  OF  PENNSYLVANIA.  531 

[Summerville  v.  Holliday.] 

him;  if  so,  under  the  view  which  I  have  taken  of  the  case,  I  think 
that  the  court  below  ought  also  to  have  instructed  the  jury  that  it 
was  their  duty  to  make  a  corresponding  abatement  in  the  amount  of 
the  legacy  or  sum  to  be  recovered,  in  order  to  carry  into  effect  what 
might  fairly  be  considered  was  the  intention  of  the  testator,  which 
was,  that  his  estate  should  be  distributed  among  his  children  in  cer- 
tain proportions  ;  and  what  would  seem  also  to  have  been  thought 
right  by  the  parties  litigant,  from  their  having  acquiesced  in  the 
report  or  recommendation  of  the  three  arbitrators. 

I  also  think  the  court  below  was  wrong  in  directing  the  jury  that 
only  one-third  of  the  legacy  could  be  recovered;  for  the  300  pounds, 
the  whole  amount  of  it,  are  given  to  the  plaintiff  Ruth  Summervilley 
her  brother  John  and  sister  Mary  jointly;  there  are  no  words  of  sev- 
erally connected  with  it.  If  the  amount  had  been  given  to  them  to 
be  divided  among  them  equally,  or  any  similar  term  or  form  of  ex- 
pression had  been  used  by  the  testator,  indicating  his  intention  to 
give  to  each  of  them  an  equal  divided  third  part  of  the  300  pounds, 
then  the  court  would  have  been  right ;  but  when  he  has  not  done 
so,  the  court  is  bound  to  construe  the  bequest  according  to  the  com- 
mon meaning  and  import  of  the  terms  employed  ;  and  can  not  supply 
words  of  severalty,  upon  mere  conjecture  that  such  would  have  met 
the  approbation  of  the  testator  had  they  been  suggested  to  him.  The 
distinction  between  the  terms  necessary  to  constitute  a  joint  and 
several  bequest  is  too  well  known  and  established  to  require  illus- 
tration ;  and  if  the  words  used  by  the  testator  in  this  case  do  not  make 
the  bequest  of  the  300  pounds  to  John,  Ruth  and  Mary  joint,  I  must 
confess  that  it  would  be  difficult  to  conceive  any  other  form  or  use 
of  terms  by  which  it  might  be  done,  unless  the  word  "joint"  or 
"jointly"  be  introduced,  which  never  has  been  alleged  to  be  indis- 
pensably necessary  for  such  purpose.  The  bequest  then  being  joint, 
and  John  and  Mary  being  both  dead  before  the  commencement  of 
this  action,  the  right  to  sue  for  the  whole  legally  survived  to  Ruth 
the  plaintiff,  and  she  would  therefore  be  entitled  to  recover  more  than 
the  one-third  of  the  whole  amount  of  it,  unless  the  other  remaining 
two-thirds  were  paid  or  satisfied  in  some  way  to  John  and  Mary  or 
released  by  them  in  their  life  times.  But  still,  notwithstanding  the 
court  erred  in  this  point,  1  think  it  would  have  been  their  duty  to 
have  charged  the  jury  that,  as  John  and  Mary  were  both  living  when 
James  Summerville  and  his  wife  brought  their  suit  in  1800,  and  not 
having  joined  in  it,  nor  yet  having  brought  any  other  suit  to  recover 
their  proportions  of  the  legacy,  it  ought,  from  the  lapse  of  time  and 
the  acquiescence  on  the  parts  of  John  and  Mary,  to  be  presumed  that 
they  were  paid  or  had  released  their  respective  proportions.  Indeed 
there  was  some  slight  evidence  given  by  the  plaintiff  herself  that 
John  had  relinquished  his  claim  to  it  in  favour  of  William  Holliday 
the  first  devisee.  It  is  true  that  this  latter  part  of  the  direction 
which  it  would  have  been  proper  to  have  given  to  the  jury  on  this 
point  would  have  neutralized  the  first  part  of  it,  so  as  to  have  pro- 


532  SUPREME  COURT  [Sunbury, 

[Siimincrvillo  v.  Holliday.] 

duced  the  same  result  with  the  charge  actually  given,  that  is,  that 
not  more  than  one-third  of  the  whole  amount  of  the  legacy  could  be 
recovered  in  this  action.  But  still  it  is  important  to  observe  and  at- 
tend to  the  lines  of  demarcation  as  laid  down  by  the  law,  in  order  to 
avoid  confusion  and  uncertainty. 

For  the  first  error  which  I  have  noticed  and  discussed,  I  think  the 
judgment  of  the  common  pleas  ought  to  be  reversed  and  the  cause 
sent  back  for  another  trial  under  a  proper  direction  to  the  jury. 

Judgment  affirmed. 


Silvergood  against  Storrick. 

Upon  the  reversal  of  a  judgment  of  a  justice  of  the  peace  upon  a  certiorari,  the 
award  of  execution  for  the  costs  is  as  much  a  part  of  the  judgment  as  the  reversal 
itself. 

The  judgment  of  the  court  of  common  pleas  upon  a  certiorari  is  final,  whether  as 
regards  reversal,  costs,  execution  or  any  other  matter ;  and  the  supreme  court  will 
take  no  cognizance  of  it. 

ERROR  to  Northumberland  county. 

James  Silvergood  and  William  Silvergood,  defendants,  obtained  a 
judgment  in  their  favour  against  Lewis  Storrick  and  John  Huggins, 
plaintiffs,  before  a  justice  of  the  peace  ;  the  judgment  was  removed 
into  the  common  pleas  by  certiorari,  and  reversed.  Storrick  and  Hug- 
gins  issued  an  execution  out  of  the  common  pleas,  for  the  costs  which 
accrued  before  the  justice  and  in  court.  The  court  below  refused  to 
set  aside  the  execution,  and  this  writ  of  error  was  sued  out,  and  these 
errors  assigned. 

1.  The  court  below  should  have  set  aside  the  execution  as  to  the 
costs  which  accrued  before  the  justice. 

2.  The  executions  are  for  costs,  in  favour  of  a  plaintiff  who  re- 
versed his  own  proceeding. 

3.  There  was  no  judgment  to  support  an  execution. 

Donnel,  for  plaintiff  in  error,  cited,  5  Bin.  204 ;  4  Serg.  fy  Rawle 
196;  3  Penns.  Rep. 

Packer,  contra. 

PER  CURIAM. — The  award  of  execution  for  the  costs  is  as  much  a 
part  of  the  judgment  of  reversal  as  is  the  reversal  itself;  and  so  in- 
separably is  it  connected  with  the  execution  which  followed,  that 
neither  could  be  reversed  without  the  other.  The  ground  taken  in 
support  of  the  writ  is,  that  there  was  no  award  of  execution,  the 


June  1833.]  OF  PENNSYLVANIA.  533 

[Silvergood  v.  Storrick.] 

judgment  entered  by  the  usual  short  memorandum  being,  in  contem- 
plation of  law,  what  it  would,  if  reduced  to  form,  appear  to  be  in  fact ; 
consequently,  if  the  costs  are  not  allowable,  there  would  be  no  spe- 
cial award  of  execution  for  them.  The  court  below,  however,  who 
could  best  judge  of  the  meaning  of  its  entry,  thought  there  was  such 
an  award,  else  the  execution  would  have  been  setj  aside  on  the 
rule  to  show  cause.  But  the  twenty-second  section  of  the  act  of 
1810,  which  declares,  that  "  the  judgment  of  the  court  of  common 
pleas  shall  be  final  on  all  proceedings  removed  as  aforesaid  by  the 
said  court,  and  no  writ  of  error  shall  issue  thereon,"  is  applicable  to 
every  judgment  or  proceeding  of  that  court  on  writs  of  certiorari  in 
the  cases  intended,  whether  as  regards  reversal,  costs,  execution,  or 
any  other  matter.  In  Welker  v.  Welker,  3  Penns.  Rep.  21,  which 
mightbe  thought  irreconcilable  to  this,  the  scire  facias  which  was  the 
subject  of  error  was  an  original  proceeding  in  the  common  pleas, 
and  might  have  presented  an  issue  for  the  determination  of  a  jury. 
Here,  however,  the  matter  is  clearly  not  within  our  jurisdiction,  and 
we  cannot  take  cognizance  of  it. 
Writ  of  error  quashed  quia  improvide. 

• 


Coxe  against  Bland  en. 

• 

Same  against  Post. 

In  ejectment,  a  third  person  cannot  object  to  the  title  of  the  plaintiff,  founded  on  a 
conveyance  of  the  legal  estate  by  a  trustee,  on  the  ground  of  its  having  been  an  abuse 
of  the  trust. 

A  treasurer's  sale  for  taxes  of  part  of  a  tract  of  land;  and  a  conveyance  of  that  part, 
designating  the  quantity,  but  not  the  locality,  is  good;  and  an  unrestricted  choice  of 
locality  to  the  purchaser,  is  a  necessary  incident  of  the  sale,  and  a  consequence  of  a» 
reasonable  interpretation  of  the  statute. 

APPEAL  from  the  circuit  court  of  Susquehanna  county,  held  by 
Justice  Rogers. 

These  were  actions  of  ejectment  by  Charles  S.  Coxe  against 
Jonas  Blanden  and  others,  and  against  Isaac  Post ;  in  each  of  which; 
the  same  questions  arose. 

The  plaintiff,  to  maintain  the  issue  on  his  part,  gave  in  evidence: 
28th  August  1787,  warrant  to  Isaac  Jones  for  four  hundred  acres  of 
land;  1st  November  1787,  survey  of  four  hundred  and  thirty-seven 
acres  and  two  hundred  and  seventy-one  perches  and  allowance  ;  1st 
December  1788,  deed  poll,  Isaac  Jones  to  Tench  Coxe;  20th  March 
1801,  deed,  Tench  Coxe  to  William  Tilghman,  Abraham  Kintzing,  Jun. 
P.  S.  Duponceau  and  G.  Worrell,  in  trust  for  certain  purposes.  And 


534  SUPREME  COURT  [Sunbury, 

[Coxe  T.  Blanden.    Coze  v.  Post.] 

then  offered,  17th  April  1803,  deed,  George  Worrell  to  P.  S.  Dupon- 
ccau;  9th  March  1822,  deed,  Abraham  Kintzing,  Jun.  to  P.  S.  Du- 
ponceau;  1st  September  1823,  William  Tilghman  to  P.  S.  Duponceau; 
9th  June  1828,  deed,  P.  S.  Duponceau  to  Charles  S.  Coxe  the  plain- 
tiff. To  this  evidence  the  defendant's  counsel  objected,  on  the  ground 
that  the  conveyances  by  the  three  trustees  to  the  fourth  and  by  him 
to  the  plaintiff,  were  in  violation  of  the  trust.  The  court  overruled 
the  objection,  and  the  defendant  excepted.  The  defendant  then,  to 
maintain  the  issue  on  his  part,  gave  in  evidence  an  assessment  of 
taxes  upon  this  tract  of  land,  four  hundred  and  thirty-seven  acres,  in 
the  name  of  Isaac  Jones,  for  the  years  1813,  1814  and  1815,  and  a  sale 
by  the  treasurer  of  the  county,  on  the  15th  of  June  1816,  of  three 
hundred  and  eighteen  acres  of  the  tract,  to  Isaac  Post  the  defendant, 
for  a  sum  sufficient  to  pay  the  taxes  and  costs.  The  deed  conveyed 
to  Post  the  three  hundred  and  eighteen  acres,  but  did  not  describe 
any  particular  part  of  the  tract.  From  these  facts  two  questions 
arose.  1.  Whether  the  defendant  could  take  advantage  of  the  vio- 
lation of  the  trust,  in  the  conveyances  given  in  evidence,  if  such 
violation  had  occurred  1  and  2.  Whether  a  sale  and  conveyance  of 
part  of  a  tract  of  land  by  the  treasurer,  for  the  payment  of  taxes, 
without  defining  any  particular  part,  vested  any  title  in  the  purchaser1? 
His  honour,  Justice  Rogers,  directed  the  jury  to  find  for  the  plaintiff, 
and  reserved  these  questions  for  discussion  and  decision  by  the  court 
in  bank. 

Conyngham  and  Williston,  for  appellants,  on  the  first  point  cited  : 
Powel  on  Powers  372  ;  Sugden  on  Powers  209,  265 ;  7  Com.  Dig.  8  ; 
4  Johns.  Cha.  Rep.  368;  9  Serg.  fy  Rawle  181;  4  Binn.  31 ;  Willis  on 
Trustees  140  ;  and  on  the  second  point,  1st  section  of  the  act  of  1815, 
Purd.  Dig.  865  ;  2d  section  of  the  act  of  1804,  13  Serg.  fy  Rawle 
151. 

Grier  and  Case,  for  appellees  :  Willis  on  Trustees  72,  84, 127, 133  ; 
2  Fonb.  167;  2  Johns.  Rep.  220;  Coxe's  Dig.  272;  on  the  second 
point,  13  Johns.  Rep.  97,  552;  11  Johns.  Rep.  373;  2  Johns.  Cos. 
384;  2  Johns.  Rep.  248 ;  1  Cruise  350. 

The  opinion  of  the  Court  was  delivered  by 

GIBSON,  C.  J. — The  report  of  the  judge  presents  two  points.  1. 
The  sufficiency  of  the  plaintiff's  title  under  the  several  conveyances 
of  the.  trustees.  2.  The  supposed  divesture  of  his  title  by  the  trea- 
surer's sales.  The  latter  of  these  was  reserved  at  the  circuit  in  order 
to  bring  it  without  prejudice  before  the  court  in  bank. 

It  is  to  be  observed  that  this  ejectment  is  not  employed  in  the  pre- 
sent instance,  as  it  sometimes  is  in  others,  to  perform  the  office  of  a 
bill  in  equity,  and  that  involving  no  considerations  arising  out  of  the 
trust,  it  is  strictly  an  action  at  law.  Such  an  action  may  be  main- 
tained here,  as  it  may  elsewhere,  on  a  naked  legal  title ;  and  the 
first  inquiry  therefore  is,,  whether  a  conveyance  of  the  legal  estate, 


June  1833.]  OF  PENNSYLVANIA.  535 

[Coxe  v.  Blanden.    Coxe  v.  Post.] 

not  ostensibly  in  execution  of  the  trust,  is  void  at  law  1  No  reason 
or  authority  has  been  shown  to  justify  us  in  declaring  it  so.  So  far 
is  the  common  law  from  lending  any  peculiar  aid  to  the  execution 
of  a  trust  of  land,  or  restraining  the  trustee  from  abusing  it,  that  it 
does  not  acknowledge  its  existence.  Even  trustees  to  support  con- 
tingent remainders  may  disappoint  the  object  by  a  common  recovery; 
and  this  without  other  redress  than  punishment  by  the  chancellor 
for  the  abuse  of  their  office.  In  the  familiar  instance  of  a  convey- 
ance by  a  trustee  with  notice,  it  never  has  been  doubted  that  the 
legal  estate  actually  passes,  though  the  motive  were  to  disincumber 
it  of  the  trust ;  and  notwithstanding  equity  puts  the  fraudulent  pur- 
chaser in  the  place  of  the  trustee,  it  does  so  but  at  the  instance  of 
the  interest  attempted  to  be  defrauded,  and  not  of  an  intruder — the 
law  interferes  at  the  instance  of  no  man.  It  has  been  suggested, 
that  however  the  matter  may  stand  where  there  is  a  separate  ad- 
ministration of  law  and  equity,  yet  where  the  legal  and  the  equita- 
ble estates  are  convertible,  the  law,  which  looks  to  the  substance  as 
well  as  the  form,  should  do  the  office  of  equity  by  declaring  convey- 
ances in  derogation  of  the  trust  to  be  void  in  the- first  instance.  I 
need  but  refer  to  the  case  of  Lodge  v.  Simonton,  2  Penns.  Rep.  439, 
in  order  to  show,  that  to  confound  tlje  legal  with  the  equitable  title, 
would  confound  our  most  settled  distinctions,  and  throw  our  juris- 
prudence into  irreparable  disorder.  Our  books  are  full  of  instances, 
in  which  the  title  depended  on  the  distinction ;  and  it  is  not  too 
much  to  say,  that  an  attempt  to  abolish  it  would  shake  our  system 
of  landed  property  to  its  foundation.  The  substance  of  the  relief  to 
be  had  against  a  purchaser  with  notice,  is  the  same  here  that  it  is 
in  England  ;  the  difference  being  in  the  manner  and  means  by 
which  it  is  obtained.  There  he  is  dealt  with  as  a  trustee  in  the 
place  of  him  from  whom  he  had  the  title,  and  compelled  to  perform 
the  trust,  by  the  instrumentality  of  a  bill  in  equity  ;  here  the  same 
effect,  in  substance,  is  produced  by  compelling  him  to  surrender  the 
possession  to  the  beneficial  owner,  or  perhaps  by  the  appointment  of 
a  trustee  in  his  stead.  But  this  can  be  done  at  the  instance  of  the 
cestui  que  trust,  and  not  of  one  who  holds  in  hostility  to  his  title. 
If  an  authority  for  these  rudimental  principles  were  wanting,  it 
might  be  had  in  Bayard  v.  Colfax,  Coxe's  Dig.  272,  in  which 
it  was  ruled  by  the  circuit  court  of  the  United  States  for  the  district 
of  New  Jersey,  that  a  third  person  cannot  object  to  the  title  of  a 
plaintiff  founded  on  a  conveyance  of  the  legal  estate  by  a  trustee, 
on  the  ground  of  its  having  been  an  abuse  of  the  trust ;  and  that 
even  the  cestui  que  trust  can  be  relieved  but  in  equity.  Nothing,  it 
seems  to  me,  is  more  reasonable  than  this  ;  for  it  would  be  absurd  to 
listen  to  the  complaint  of  an  intruder,  in  behalf  of  one  who  does  not 
think  fit  to  complain  for  himself,  and  one  whose  interest  it  is  not  to 
complain  ;  for  the  recourse  of  the  cestui  que  trust  would  undoubtedly 
be  less  difficult  against  the  holder  of  the  legal  title,  than  against  one 
who  holds  adversely  not  only  to  the  equitable  title,  but  the  legal 


536  SUPREME  COURT  [Sunbury, 

[Coze  v.  Blanden.    Coie  v.  Poet.] 

tide  also.  But  the  very  point  was  decided  by  this  court,  in  Hunt  v. 
Crawford,  3  Penns.  Rep.  426.  The  plaintiff  therefore  must  recover, 
unless  his  tille  has  been  divested  by  the  treasurer's  sales. 

The  objection  to  the  treasurer's  deeds  is,  that  they  define  the 
quantity,  but  not  the  part  sold.  Such  an  uncertainty  in  the  grant 
of  an  individual,  is  remediable  at  the  common  law,  by  the  election 
of  the  grantee  ;  but  not  in  the  case  of  the  king,  against  whom  there 
is  no  election  ;  and  his  grant  is  therefore  said  to  be  void  for  the  un- 
certaintyl  Our  county  treasurers,  though  agents  of  the  public,  are 
not  invested  with  this  prerogative,  which,  relating  as  it  does  to  the 
person  of  the  king,  and  not  to  his  government,  is  inapplicable  to  the 
sovereignty  of  a  republic  ;  and  at  all  events,  the  right  of  election,  if 
permissible  on  other  grounds,  in  a  case  like  this,  is  to  be  exercised 
adversely  to  the  right  of  the  debtor  and  not  of  the  public.  A  dis- 
tinction, however,  is  attempted  on  another  ground,  and  not  without 
a  respectable  show  of  authority.  In  delivering  the  opinion  of  the 
court  in  Jackson  v.  Delancy,  1 1  Johns.  373,  Mr  Justice  Yeates  re- 
marked, that  though  a  general  description  in  a  mortgage,  is  open  to 
no  objection,  because  a  party  conusant  of  his  rights  may  sell  as  he 
pleases ;  yet  that  an  officer  must  define  what  he  sells.  The  point 
before  us  was  touched  but  incidentally,  and  in  a  way  too  which  is 
not  in  unison  with  our  own  decisions.  In  Heyskiliv.  Given,  6  Serg. 
<$•  Rawle  369,  the  levy  of  "  a  tract  of  land  in  the  name  of  Mordecai 
•M'Kinney,  containing  three  hundred  acres  more  or  less,"  was  held 
certain  enough,  as  the  subject  was  susceptible  of  ascertainment,  by 
recourse  to  extrinsic  circumstances;  and  in  Swartz  v.  Moore,  5  Serg. 
4-  Rawle  257,  it  was  determined  that  if  a  levy  and  sale  are  not  by 
fixed  boundaries,  or  of  an  ascertained  quantity,  but  of  a  certain  num- 
ber of  acres,  more  or  less,  in  the  tenure  of  A  B,  the  vendee  holds  to 
the  extent  of  such  preceding  tenure.  I  am  aware  that  this  is  foreign 
to  the  question  of  election  ;  but  the  decisions  in  New  York  are  as  far 
from  touching  it  as  are  our  own.  In  the  same  case  of  Delancy  v. 
Jackson,  as  it  appeared  on  a  writ  of  error  in  13  Johns.  551,  the  chan- 
cellor certainly  did  not  put  his  objection  to  the  deed  on  the  impossi- 
bility of  ascertaining  the  subject  of  it,  but  on  the  supposed  detriment 
to  the  debtor,  from  a  description  so  loose  as  to  leave  the  value  of  the 
property  altogether  uncertain,  in  the  estimate  of  the  bidders ;  and  in 
Jackson  v.  Rosevelt,  13  Johns.  97,  Mr  Justice  Yeates  put  the  opinion 
of  the  court  on  the  same  foundation.  These  cases  were  determined 
on  principles  of  policy  and  convenience  ;  and  how  far  that  might 
distinguish  them  from  a  decision  on  the  construction  to  be  made  of 
a  statutory  power,  would  be  a  matter  of  inquiry  were  they  of  binding 
authority  on  this  court.  Except  Erwin  v.  Helen,  13  Serg.  fy  Rawle 
155,  to  be  noticed  presently,  the  only  case  that  seems  to  come  entire- 
ly up  to  the  point,  is  Haven  v.  Cram,  1  Adams's  JY*.  H.  Rep.  93,  where 
a  constable's  deed,  in  which  land  sold  for  taxes  was  described  as  "  a 
certain  tract  of  land,  part  of  No.  300,  containing  two  hundred  and 
fifty  acres,"  was  held  void  for  uncertainty.  We  know  not  what  are 


June  1833.]  OF  PENNSYLVANIA.  537 

[Coxe  v.  Blanden.    Coxe  v.  Post.] 

the  statutory  provisions  of  New  Hampshire,  but  it  seems  to  me  an 
unanswerable  argument  in  favour  of  reduction  to  certainty  by  elec- 
tion, arises  from  the  provisions  of  our  own.  By  the  act  of  1804,  the 
treasurer  is  directed  "  to  make  public  sale  of  the  whole  or  any  part 
of  such  tracts  of  unseated  land  as  he  may  find  necessary  for  the  pay- 
ment of  the  taxes  due  thereon  respectively."  Granting,  then,  that, 
by  the  principles  of  the  common  law,  none  but  the  absolute  owner 
of  the  land  may  sell  on  terms  that  give  the  purchaser  an  election, 
and  that  an  officer  is  bound  to  sell  a  parcel  in  the  way  most  advan- 
tageous to  him,  by  preventing  the  purchaser  from  taking  his  quan- 
tity so  as  to  spoil  the  residue  ;  yet  if  the  object  of  a  statute  which 
directs  the  sale  can  be  accomplished  but  by  relaxing  the  common 
law  in  this  particular,  an  authority  to  do  so  is  as  much  a  part  of  the 
statute  as  if  it  were  given  in  terms.  Were  it  otherwise  the  statute 
would  be  controlled  by  the  common  law.  What,  then,  was  the  ob- 
ject here,  and  what  the  means  of  its  accomplishment  1  The  autho- 
rity to  sell  a  part  was  evidently  designed  to  protect  the  owner  from 
an  unnecessary  sacrifice  of  his  property  ;  and  in  the  construction  of 
it,  respect  is  to  be  had  to  the  state  and  condition  of  the  subject  of  it, 
at  the  time  of  the  enactment ;  for  these  must  be  taken  to  have  been 
within  the  contemplation  of  the  legislature.  If  the  provision  for  the 
benefit  of  the  owner,  can  not  be  executed  consistently  with  the 
technical  principles  of  a  grant,  without  frustrating  the  object  of  it, 
by  reason  of  the  actual  circumstances ;  those  principles  must  give 
way,  for  the  reason  that  the  common  law  must  give  way  when  a 
statute  can  not  be  executed  without  it.  In  1804,  then,  when  the 
statute  was  enacted,  these  unseated  lands  were  literally  in  the  wil- 
derness. Nine  years  afterwards,  when  I  became  acquainted  with 
the  northern  part  of  the  state,  where  the  principal  part  of  them  are 
situated,  entire  districts  were  yet  unsettled  ;  and  instead  of  defining 
a  part  of  any  particular  tract  with  certainty,  it  would  not  have  been 
an  easy  matter  to  determine  the  township  in  which  it  lay.  It  was 
found  to  be  impracticable  to  assess  them  separately,  according  to  the 
actual  value  of  the  tract ;  in  consequence  of  which,  the  prac- 
tice was  to  rate  them  all  alike,  and  usually  at  twenty-five  cents  the 
acre,  which  was  about  the  eighth  part  of  the  average  value.  To 
have  designated  the  particular  parcels  intended  to  be  sold,  would 
have  required  not  only  a  general  survey  of  the  country,  but  a  parti- 
cular survey  of  each  tract ;  which  would  have  doubled  the  charges 
and  rendered  the  proceeds,  even  of  the  whole,  inadequate  to  pay- 
ment of  the  tax  ;  certainly  an  unprofitable  measure  for  both  parties. 
But  having  set  apart  a  particular  parcel  by  survey,  there  would  have 
been  no  certainty  of  its  sufficiency  to  raise  the  sum  required,  and  the 
expense  of  the  previous  survey  would  have  been  a  dead  loss,  the 
whole  being  brought  to  the  hammer  whenever  the  bidders  under- 
stood their  interest.  In  these  circumstances,  then,  there  could  have 
been  no  designation  before  the  sale  ;  and  to  have  made  it  by  the 
terms  of  the  contract  in  a  way  to  effect  the  purpose  of  the  legisla- 
3s 


538  SUPREME  COURT  [Sunbury, 

[Coxo  v.  Blanden.     Coxe  v.  Post.] 

ture,  was  still  more  difficult.  In  fact  there  was  but  one  way  in 
which  it  could  be  done  at  all.  A  parcel  containing  a  definite  number 
of  acres  might  be  cut  from  a  particular  side  of  the  survey,  by  a  line 
to  be  run  conformably  to  a  designated  course  ;  but  is  it  to  be  supposed 
that  live  legislature  had  in  view  a  method  which  would  be  obnoxious 
to  the  very  objections  intended  to  be  avoided :  for  it  is  evident  the 
bidders  would  have  been  left  by  it  as  much  in  the  dark  as  ever,  in 
regard  to  the  actual  value  ;  and  as  to  advantage  to  the  owner,  no 
one  can  doubt  that  the  tract  would  be  as  effectually  ruined  for  every 
purpose  of  usefulness  to  either  party,  as  if  the  purchaser  were  allow- 
ed to  take  his  part  at  his  election.  It  is  not  to  be  supposed  that  the 
bidders  would  enter  into  a  blind  bargain  for  a  part,  when  they  might, 
by  holding  off,  obtain  the  whole  unmutilated  by  an  arbitrary  divi- 
sion, without  regard  to  its  natural  advantages,  or  the  relative  situa- 
tion of  springs,  watercourses,  upland,  and  meadow.  A  power  to  sell 
a  part,  necessarily  includes  a  power  to  sell  in  the  way  most  condu- 
cive to  the  object ;  and  if  the  statute  is  to  have  a  reasonable  con- 
structitin,  it  must  be  taken  that  a  plan  of  such  extreme  but  fruitless 
nicety,  was  not  within  the  contemplation  of  the  legislature.  To  say 
that  the  part  sold  shall  be  designated  at  the  sale,  by  a  mathematical 
line,  is  to  say  that  the  power  shall  be  executed  for  the  potential  and 
not  the  actual  benefit  of  the  owner.  In  E'ncin  v.  Helen,  already 
mentioned,  a  more  restricted  authority  was  thought  to  be  vested  in 
the  treasurer,  who  was  supposed  incompetent  to  sell  on  terms  which 
imply  an  election  by  the  grantee.  It  is  obvious  that  the  question  did 
not  directly  or  even  necessarily  arise  :  as  the  assignment  of  error  had 
regard  to  want  of  descriptiveness  in  the  declaration  ;  and  it  was  not 
pretended  that  the  purchaser  had,  in  fact,  made  an  election,  without 
which  his  title  would  have  been  imperfect  under  any  determination 
of  the  principle^  The  obiter  opinion  of  a  judge,  though  entitled  to 
great  respect,  can  not  claim  the  submission  due  to  an  authority;  and 
I  am  not  disposed  to  yield  more  deference  to  my  own  dicta  than  to 
those  of  any  other  judge.  That  a  position  taken  but  as  one  of  the 
grounds  of  a  legal  inference,  is  less  likely  to  be  secure  than  the  infer- 
ence is  to  be  correct,  will  be  admitted  by  all  who  are  familiar  with  the 
investigation  of  principles  depending  on  authority.  The  powers  of 
the  judge  are  mainly  bent  on  accuracy  in  the  result;  and  it  is  more 
probable  that  it  will  be  attained  there,  where  the  point  has  been  the 
subject  of  direct  discussion  and  deliberate  consideration,  than  where 
it  was  incidentally  involved,  and  the  conclusion  promptly  drawn, 
after  an  argument,  in  which  the  subject  was  but  barely  touched. 
It  was  supposed  that  the  designation  of  a  particular  locality  would 
render  the  grant  certain  to  a  common  intent,  and  be  an  execution  of 
the  statutory  provision,  according  to  its  intent,  without  the  violation 
of  a  pre-established  rule.  Further  reflection  lias  led  to  an  opinion, 
that  though  the  greater  part  of  the  land  may  thus  be  designated 
with  tolerable  certainty,  yet  that  as  particular  parts  may  be  included 
or  left  out  when  the  boundaries  come  to  be  fixed,  the  grant  must  be 


Jwne  1833.]  OF  PENNSYLVANIA.  539 

[Coxe  v.  Blandcn.    Coxe  v.  Post.] 

uncertain  as  to  these  ;  and  it  is  impossible  to  conceive  of  its  going 
into  immediate  operation  as  to  a  part  and  not  the  whole.  The  dif- 
ficulty would  still  remain  to  be  surmounted  by  an  election,  as  the 
grantee  would  be  entitled  to  have  the  land  laid  off,  in  the  way  most 
beneficial  to  him  in  respect  to  every  thing  else  than  its  situation  in 
relation  to  the  rest  of  the  tract  as  a  whole  ;  and  little  would  be  gained 
by  discriminating  betwixt  an  election  as  to  locality,  and  an  election 
as  to  boundaries.  The  defect  in  the  view  of  the  subject  taken  in 
that  case,  was  in  considering  it  practicable  to  execute  the  statute 
consistently  with  the  common  law  principles  of  a  grant,  by  what 
was  still  an  imperfect  designation,  the  difference  being  but  in  the 
degree.  As  I  am  of  opinion  that  such  an  execution  would  not  satisfy 
the  design  of  the  law,  I  am  for  allowing  the  grantee  an  unrestricted 
choice,  as  a  necessary  incident  of  the  sale  and  the  consequence  of  a 
reasonable  interpretation  of  the  statute. 

But,  the  vesting  of  the  residue  in  the  purchaser  by  a  subsequent 
sale,  as  was  done  in  respect  to  one  of  these  tracts,  would  cure  the 
original  defect  in  the  conveyance,  if  any  there  were,  by  superseding 
the  necessity  of  an  election  or  particular  designation  altogether. 
This  consequence  of  adding  the  residue  to  the  part  sold,  could  be 
evaded  but  by  holding  the  first  deed  to  be  void  at  the  time  of  its  de- 
livery; which  would  perhaps  render  the  second  equally  so.  Was  it 
however  so  void  as  to  be  incapable  of  confirmation  by  any  act  what- 
ever? A  principle  which  would  produce  that  effect  must  equally 
defeat  the  grant  of  an  individual,  as  the  reduction  to  certainty  by  an 
election  subsequently  would  come  too  late ;  such  however  is  not  the 
law,  for  in  the  case  of  an  individual,  the  act  of  election  may  be  de- 
layed for  any  period  within  the  lifetime  of  the  grantee,  unless  per- 
haps where  it  is  hastened  by  a  request.  "Where  nothing  passeth," 
says  Lord  Coke,  "  to  the  feoffee  or  grantee  before  election  of  the  one 
thing  or  the  other,  there  the  election  ought  to  be  made  in  the  life- 
time of  the  parties,  and  the  heir  or  executor  can  not  make  it.  But 
where  an  estate  or  interest  passes  immediately  to  the  feoffee  or  donee, 
the  election  may  be  made  by  themselves,  their  heirs  or  executors. 
Secondly,  where  one  and  the  same  thing  passeth  to  the  donee  or 
grantee,  and  the  donee  or  grantee  hath  election  in  what  manner  or 
degree  he  will  take  this,  there  the  interest  passeth  immediately,  and 
the  party,  his  heirs  and  executors,  may  make  election  when  they 
will."  Co.  Litt.  145  a.  In  other  words,  where  the  election  is  not  be- 
tween things  but  modes  of  enjoyment,  the  interest  passes  presently, 
and  the  mode  may  be  determined  by  the  representatives  of  the  donee; 
but  where  it  is  between  things,  as  it  was  in  the  case  before  us,  the 
interest  does  not  pass  presently;  and  as  it  can  not  vest  in  the  donee 
after  his  death,  an  election  to  give  it  effect  must  be  made  in  his  life- 
time. But  may  it  not  vest  by  any  other  act  which  equally  fixes  the 
operation  of  the  grant?  In  HeywarcFs  Case,  2  Rep.  36,  it  is  said: 
"if  a  man  makes  a  lease  for  life  of  two  acres,  the  remainder  of  one 
to  J.  S.  and  of  the  other  to  J.  JV. ;  he  who  first  makes  election  shall 


540  SUPREME  COURT.  [Sunbury. 

[Coxo  v.  Hlandcn.     Coxo  v.  Post] 

enjoy  the  one  acre,  and  thereby  the  other  acre  hath  vested  in  the 
other."  And,  evidently,  because  the  act  of  another  has  superseded 
the  necessity  of  an  election  by  him,  by  removing  the  original  uncer- 
tainty without  his  intervention.  The  difference  betwixt  that  case 
and  the  present  consists  but  in  this,  that  the  uncertainty  was  remov- 
able in  the  former  by  the  grantees  or  one  of  them,  and  in  the  latter 
by  the  grantor;  but  it  is  not  easy  to  understand  why  it  should  make 
the  grant  void  ab  initio,  unless  it  were  incapable  of  being  removed  in 
any  way.  Assuredly  it  might  be  removed  by  a  grant  of  the  residue, 
in  the  case  of  the  king,  against  whom  there  is  no  election,  just  as  it 
might  be  removed,  in  the  case  of  a  subject,  by  an  election  actually 
made;  and  why  it  may  not  by  the  treasurer's  grant  of  the  residue, 
when  he  has  the  same  power  of  disposal  in  a  case  fairly  arising  under 
the  statute,  I  am  at  a  loss  to  comprehend.  An  act  which  removes 
the  original  obstacle  to  an  immediate  operation  of  the  grant,  ought 
to  be  equally  effectual  as  an  election,  come  from  what  quarter  it  may. 
Even  taking  it  for  granted,  then,  that  the  purchaser  had  no  election 
under  the  first  grant,  yet  the  object  of  an  election  being  attained  in 
another  way,  both  grants  became  operative  in  him  ;  and,  this,  were 
it  necessary  to  recur  to  it,  would  dispose  of  his  title  to  the  tract  in  the 
name  of  Israel  Pleasants.  But  the  election  actually  made  by  the 
defendants  is  effectual  to  dispose  of  it  as  to  both ;  and  as  it  appeared 
on  the  evidence,  the  verdict  ought  to  have  been  in  their  favour. 
Judgment  reversed  and  a  new  trial  awarded. 


INDEX. 


ABANDONMENT. 

1.  Whenever  a  question  of  abandonment  of  title,  consisting  of  an  actual  set- 
tlement, arises  from  a  lapse  of  time  less  than  seven  years,  accompanied  by  cir- 
cumstances from  which  it  might  be  inferred  that  the  party  intended  to  abandon, 
it  is  a  mixed  question  of  fact  and  law,  to  be  submitted  to  the  decision  of  the  jury. 
Brentlinger  v.  Hutchinson,  46. 

But  when  the  question  arises  from  mere  lapse  of  time,  it  is  a  question  of 
law,  to  be  decided  by  the  court,  without  regard  to  the  intention  of  the  party  ; 
and  if  it  exceeds  seven  years,  it  is  a  conclusive  abandonment  in  law.  Ibid. 

ABATEMENT. 

An  action  against  a  husband  and  wife,  upon  a  contract  of  the  wife  dum  sola, 
abates  as  to  the  husband  at  his  death.  J\"utz  v.  Reuttcr,  229. 

ACKNOWLEDGEMENT. 
DEED,  2,  3. 

ACTION. 

RELEASE,  1. 
HUSBAND  AND  WIFE,  1. 
JUDGMENT,  2. 
PARTITION,  2. 
ARBITRATION,  1. 
GUARDIAN,  1. 

1.  In  an  action  ex  contractu  against  several,  it  must  appear  by  the  pleadings 
that  the  contract  was  joint,  and  that  fact  must  be  proved.    Nutz  v.  Reutter,  229. 

An  action  against  a  husband  and  wife,  upon  a  contract  of  the  wife  dum  sola, 
abates  as  to  the  husband  at  his  death.  Ibid. 

2.  Upon  an  amicable  partition  of  lands  between  tenants  in  common,  or  a  sale 
founded  upon  such  partition,  by  which  money  is  payable  by  one  of  the  tenants 
in  common,  an  action  may  be  maintained  by  him  for  its  recovery  against  another 
tenant  in  common,  who  took  or  purchased  the  land,  with  notice  to  a  terre  tenant, 
to  whom  the  land  had  been  subsequently  conveyed.    Long  v.  Long,  265. 

In  such  an  action  the  defendant  who  took  or  purchased  the  land  would  not 
be  a  competent  witness  to  establish  the  liability  of  the  terre  tenant.  Ibid. 

3.  Upon  the  receipt,  by  a  plaintiff  in  a  judgment,  from  the  sheriff,  of  more 
money  out  of  the  proceeds  of  the  sale  of  real  estate  than  he  is  entitled  to,  an 
action  can  not  be  maintained  in  the  name  of  the  defendant  whose  property  was 
sold  to  recover  it  back,  although  brought  for  the  use  of  another  creditor,  who 


542  INDEX. 

ACTION. 

would  be  entitled  to  receive  it  from  the  sheriff.  The  action  should  be  in  the 
name  of  the  sheriff.  Whether  such  action  Could  be  maintained  in  the  name  of  a 
creditor  entitled  to  the  money,  Qu<crc.  Ijongeneckcr  v.  Zeigler,  252. 

4.  An  action  on  a  bond  of  indemnity,  given  by  one  to  two,  when  one  has 
alone  been  damnified,  is  rightly  brought  in  the  name  of  both  the  obligees  for  the 
use  of  the  one  ;  and  declaration  is  not  vitiated  by  a  particular  relation  of  the  use, 
nor  by  the  conclusion  that  the  refusal  of  the  defendant  to  pay  was  to  the  damage 
of  one.    Mehaffy  v.  Lytlc,  314. 

5.  Two  persons  entered  into  a  parol  agreement  to  purchase  a  tract  of  land, 
which  was  afterwards  purchased,  and  a  deed  taken  in  the  name  of  one  of  them  : 
the  other  died ;  it  was  held  that  his  administrator  might  maintain  an  action 
against  the  survivor  to  recover  back  the  money  advanced  by  his  intestate,  on  the 
ground  that  the  contract  was  vitiated  in  the  origin  by  the  fraud  of  the  defendant, 
the  surviving  party.    But  in  such  action  the  contract  must  be  wholly  disaffirmed. 
The  measure  of  damages 'shall  not  be  estimated  from  any  profit  which  was  made 
upon  a  subsequent  sale  of  the  land.    Pennock  v.  Freeman,  401. 

ADMINISTRATION. 

ADMINISTRATOR,  1,  2. 

H.,  executor  of  15.,  sold  the  real  estate  of  his  testator  and  took  bonds  for  the 
purchase  money,  which  remained  in  his  hands  until  he  died  intestate  and  insol- 
vent. Held,  that  the  estate  of  the  testator  which  came  to  the  hands  of  the 
administrator  of  the  executor,  should  be  appropriated  by  him  for  the  benefit  of 
the  estate  of  the  testator,  and  not  to  the  creditors  of  the  insolvent  executor. 
Marshall  v.  Hof,  440. 

ADMINISTRATION  BOND. 

1.  The  non-payment  of  a  debt  by  an  administrator  is  not  such  a  breach  of  the 
condition  of  his  administration  bond  as  will  enable  the  creditor  to  sue  it  and 
recover  his  debt,  without  a  previous  suit  fixing  the  administrator  with  a  deeas- 
tavit.     Commonwealth  v.  Evans,  437. 

2.  The  same  security  which  is  afforded  by  an  administration  bond  to  the  heirs 
of  an  intestate  results  to  the  commonwealth  in  the  case  of  the  death  of  an  intes- 
tate without  heirs  or  known  kindred.     Crawford  v.  The  Commonwealth,  480. 

In  case  of  an  intestacy  without  heirs  or  known  kindred,  the  commonwealth 
can  not  maintain  a  scire  facias  upon  a  judgment  obtained  against  the  administra- 
tors on  their  administration  bond  to  recover  the  personal  estate,  without  first 
having  established  her  right  by  an  inquest  confirmed  by  the  court.  Ibid. 

ADMINISTRATORS. 

ADMINISTRATION  BOND,  1,  2. 

1.  Administrators  who  enter  into  a  joint  and  several  administration  bond,  and 
file  a  joint  inventory,  are  jointly  and  severally  liable  for  the  whole  amount  of  the 
personal  property  of  the  intestate.    Boyd  v.  Boyd,  3G5. 

2.  The  fiduciary  relation  which  exists  between  an  administrator  and  heir, 
makes  them  so  far  privies  in  representation,  that  the  act  of  the  administrator  will 
bind  the  heir,  as  that  of  his  trustee.    Pennock  v.  Freeman,  401. 

An  administrator  necessarily  succeeds  to  the  decedent's  right  to  rescind  a 
contract  for  the  purchase  and  sale  of  land  by  recovering  back  the  purchase  money, 
or  he  may  leave  the  heir  to  affirm  it  by  insisting  on  a  conveyance.  Ibid. 


INDEX.  543 

AFFIDAVIT. 

APPEAL,  3. 

AMENDMENT. 

SCIRE  FACIAS,  1. 

APPEAL. 

INSOLVENT, 1. 

1.  In  an  action  for  a  legacy  brought  against  executors  and  a  devisee  of  land 
charged  with  its  payment,  a  report  of  arbitrators  was  made  in  favour  of  the  ex- 
ecutors, and  against  the  devisee,  from  which  one  of  the  executors  (the  other 
dissenting)  appealed,  without  the  payment  of  the  costs :  held,  that  the  appeal  was 
rightly  stricken  off  by  the  court  of  common  pleas.     Lyon  v.  Mlison,  161. 

2.  An  appeal  from  the  decree  of  the  orphan's  court,  ordering  a  sale  of  real 
estate  for  the  payment  of  debts,  is  a  supersedeas  to  such  sale.    Hess's  Appeal, 
255. 

3.  The  want  of  an  affidavit  by  the  appellant,  in  the  case  of  a  decree  distributing 
the  proceeds  of  a  sheriff's  sale  of  land,  is  fatal  to  the  appeal.    An  affidavit  by  his 
attorney  and  agent  will  not  do.     Wkitehill  v.  The  Bank,  396. 

APPROPRIATION. 

ADMINISTRATION,  1. 
LIEN,  1. 

FEIGNED  ISSUE,  1. 

In  an  action  upon  articles  of  agreement  for  the  purchase  and  sale  of  land, 
the  jury  found  a  certain  sum  due  and  payable  by  the  defendant,  and  another  sum 
not  due  until  the  death  of  a  widow,  but  a  lien,  and  chargeable  upon  the  land  : 
executions  having  issued  on  the  judgment,  the  money  made  by  the  sale  of  other 
land,  and  brought  into  court  for  appropriation;  the  court  ordered  the  money 
payable  presently  by  the  terms  of  the  verdict,  to  be  paid  to  the  plaintiff,  that 
which  was  payable  upon  the  death  of  the  widow  to  be  paid  to  another  creditor 
who  had  a  mortgage  on  the  land  sold,  and  that  mortgage  to  stand  for  the  use  of 
the  plaintiff  pro  tanto.  Held,  that  such  decree  and  order  is  the  subject  of  a  writ 
of  error,  and  is  erroneous.  Fisher  v.  Kean,  259. 

ARBITRATION. 

In  a  joint  action  against  two  or  more,  a  rule  of  reference  cannot  be  taken  as 
to  one  of  the  defendants,  nor  any  less  number  than  the  whole,  and  must  be  served 
on  all.  Beltzhoover  v.  The  Commonwealth,  126. 

BOND. 

JUDGMENT,  4. 

ADMINISTRATION  BOND,  1,  2. 

Interest  beyond  the  penalty  of  a  bond  may  be  recovered  in  a  court  of  law, 
in  the  shape  of  damages.  Boyd  v.  Boyd,  365. 

CERTIORARI. 

1.  A  writ  of  certiorari  from  the  supreme  court  to  the  judges  of  the  court  of 
quarter  sessions,  will  not  be  quashed,  because  the  party  to  the  proceedings  in  the 
court  below  was  dead  when  it  issued.     Commonwealth  v.  M'Jlllister,  307. 

2.  Upon  the  reversal  of  a  judgment  of  a  justice  of  the  peace  upon  a  certiorari, 


544  INDEX. 

CERTIORARl. 

tin'  award  of  execution  for  the  costs  is  as  much  a  part  of  the  judgment  as  the 
reversal  itself.     Silver  good  v.  Storrick,  532. 

The  judgment  of  the  court  of  common  pleas  upon  a  eertiorari  is  final, 
whether  as  regards  reversal,  costs,  execution  or  any  other  matter;  and  the 
supreme  court  will  take  no  cognizance  of  it.  Ibid. 

COMMISSIONER'S  SALE. 

In  order  to  the  admission  in  evidence  of  a  deed  from  the  county  commiss- 
ioners, it  is  not  necessary  to  show  all  the  pro-requisites  of  a  sale  made  for  taxes 
by  the  treasurer  to  the  commissioners :  it  is  sufficient  if  it  appear  that  the  grantor 
was  the  treasurer,  and  that  he  did  sell  and  convey  to  the  commissioners.  Hus- 
ton v.  Foster,  477. 

It  is  not  a  good  objection  to  a  deed  from  the  commissioners  that  the  sale 
was  made  on  a  day  to  which  it  had  been  adjourned.  Nor  is  it  a  good  objection, 
that  the  deed  was  under  the  private  seal  of  the  commissioners  and  not  their  cor- 
porate seal.  Ibid. 

COMPROMISE. 

If  a  compromise  of  a  doubtful  right  be  obtained  from  a  plaintiff  through  the 
misrepresentation  of  a  witness,  and  in  consequence  of  the  influence  of  his  testi- 
mony, and  the  persuasion  of  arbitrators,  to  whom  the  same  had  been  referred :  it 
is  not  binding,  if  the  defendant  knew  of  such  misrepresentation,  and  availed 
himself  unduly  of  its  influence.  Hoge  v.  Hoge,  163. 

CONTRACT. 

HUSBAND  AND  WIFE,  1. 

1.  In  an  action  for  hire,  a  contract  of  hire  must  be  proved ;  proof  of  a  loan  of 
the  property  will  not  support  the  action.     Dunham  v.  Kinnear,  130. 

2.  Part  performance  of  a  parol  contract  for  the  sale  of  land  is  essential  to  its 
validity.    Peifer  v.  Landis,  392. 

CORPORATION. 

MORTMAIN,  1. 

TRUSTS,  2. 

A  corporation  which,  by  its  charter,  is  authorized  to  purchase  in  fee,  or  for 
any  less  estate,  "  all  such  lands,  tenements  and  hereditaments,  and  estate,  real 
and  personal,  as  shall  be  necessary  and  convenient  for  them  in  the  prosecution 
of  their  works;  and  the  same  to  sell  and  dispose  of  at  their  pleasure:"  has  power 
to  mortgage  its  real  estate  to  secure  the  payment  of  a  debt.  Gordon  v.  Preston, 
385. 

If  a  mortgage  by  a  corporation  be  executed,  not  on  a  charter  day,  or  day 
appointed  by  a  by -law,  but  at  a  special  meeting,  convened  without  notice,  written 
or  verbal,  to  the  directors  who  did  not  attend,  it  would  be  voidable  by  the  corpo- 
ration. But  if  no  objection  be  made  by  the  corporation,  it  will  be  deemed  to  have 
acquiesced  in  and  ratified  the  proceeding.  Ibid. 

A  judgment  creditor  of  a  corporation  cannot  take  advantage  of  such  an 
irregularity  in  the  execution  of  a  mortgage  by  it,  so  as  to  defeat  it,  and  entitle 
himself  to  the  proceeds  of  the  sale  of  the  mortgaged  premises.  Ibid. 

The  fact  of  a  mortgage  given  for  a  greater  sum  than  was  due,  will  not  avoid 
it,  unless  it  be  done  with  a  fraudulent  intent.  Ibid. 

A  mortgage   by  a  corporation,  executed  by  the  members  of  the  board  of 


INDEX.  545 

CORPORATION. 

directors  present,  and  acknowledged  by  them,  and  the  seal  of  the  corporation 
affixed,  is  a  good  execution  and  acknowledgement.    Ibid, 

A  corporator  may  sustain  the  relation  of  debtor  or  creditor  in  regard  to  the 
corporation,  and  in  the  latter  receive  a  security.  Ibid. 

COSTS. 

APPEAL,  1. 
DEFENCE,  2. 

1.  In  an  action  brought  in  the  common  pleas  to  recover  the  price  of  carrying 
goods,  the  plaintiffs  recovered  a  verdict  and  judgment  for  a  sum  less  than  100 
dollars,  but  which  was  reduced  below  that  sum  by  a  defence,  on  the  ground  of 
injury  done  to  the  goods  carried  ;  it  was  held,  that  the  plaintiff  was  entitled  to 
recover  costs,  although  no  affidavit  was  filed  that  his  claim  exceeded  100  dol- 
lars.   Bartram  v.  M  'Kee  et  al.,  39. 

2.  In  a  suit  before  a  justice  of  the  peace,  judgment  was  rendered  for  plaintiff 
for  40  dollars,  from  which  the  defendant  appealed  to  the  common  pleas,  where 
the  cause  was  arbitrated,  and  an  award  for  the  defendant,  from  which  the  plain- 
tiff appealed.    The  cause  was  afterwards  tried  by  jury,  and  a  verdict  and  judg- 
ment for  the  plaintiff  for  17  dollars,  the  defendant  having  given  other  evidence 
than  was  given  to  the  justice.    Held:  That  the  defendants  were  liable  to  pay 
the  costs  which  accrued  before  the  justice,  and  to  refund  to  the  plaintiff  the  costs 
which  he  had  paid  on  the  appeal  from  the  award  of  arbitrators,  and  that  each 
party  should  pay  his  own  costs  which  accrued  subsequently  to  the   award. 
Ross  v.  Soles,  43. 

3.  A  plaintiff  having  appealed  from  the  judgment  of  a  justice  of  the  peace 
against  him,  recovered  a  judgment  in  his  favour  in  court.    Held :  That  he  was 
entitled  to  have  a  judgment  for  full  costs.    Adams  v.  M'Uheny,  53. 

4.  Upon  an  appeal  from  the  judgment  of  a  justice,  by  the  defendant,  the  plain- 
tiff recovered  in  court,  less  than  before  the  justice,  the  defendant  having  given 
new  evidence.    Held :  That  each  party  should  pay  their  own  costs  which  ac- 
crued subsequently  to  the  appeal,  and  that  the  defendant  should  pay  the  costs 
which  accrued  before  the  justice.    Franklin  v.  Wray,  129. 

CUSTOM. 

Farol  proof  of  a  particular  custom  should  not  be  suffered  to  control  the  gene- 
ral law  of  the  land.  BoUon  v.  Colder  and  Wilson,  360. 

DEBTS. 

LIMITATION,  1. 

DECEDENT. 

LIMITATION,  1. 

DECLARATION. 

ACTION,  1,  4. 

A  general  verdict  for  the  plaintiff  in  an  action  of  slander  is  bad,  when  it  is 
upon  a  declaration  containing  two  counts,  in  one  of  which  the  words  laid  to  have 
been  spoken  are  actionable,  and  in  the  other  not  actionable.  Ruth  v.  Kvtz,  489. 

Such  a  verdict  having  been  rendered  in  the  circuit  court,  and  a  judgment 
upon  the  faultless  count,  the  court  in  lank  set  aside  the  verdict  and  judgment, 
and  directed  a  venire de  novo  to  issue.  Ibid. 


546  INDEX. 

DEED. 

EVIDENCE,  1. 
TENDER,  1. 

1.  If  a  deed  bo  altered  aflcr  delivery,  the  alteration  destroys  the  deed  as  to  the 
party  who  altered  it,  but  docs  not  destroy  the  estate.     If  it  contain  covenants, 
the  party  loses  all  remedy  on  them,  but  the  title  is  not  divested.     It  is  the  instru- 
ment which  is  rendered  void,  not  the  estate.     Withers  v.  Atkinson,  230. 

2.  Whether  an  instrument  of  writing  be  under  seal  or  not,  is  a  question  of  law 
to  be  solved  by  the  court  from  the  'inspection  of  the  paper  itself.    Duncan  v. 
Duncan,  322. 

An  horizontal  slit  in  the  parchment  upon  which  a  conveyance  is  written, 
with  a  ribbon  drawn  through  it  opposite  the  name  of  the  justice  before  whom 
the  acknowledgement  was  made,  is  not  a  sufficient  seal  to  constitute  a  deed.  Ibid. 

The  acts  of  assembly  of  the  28th  of  May  1715,  24th  of  February  1770,  18th 
of  March  1775,  and  the  18th  of  March  1814,  providing  a  mode  for  taking  the 
acknowledgement  of  deeds  by  justices,  aldermen  and  judges,  are  all  in  pari  ma- 
teria ;  and  their  construction  requires  that  the  acknowledgement  taken  by  any  of 
these  officers  should  be  certified  under  their  hand  and  seal,  in  order  to  justify  the 
recording  of  the  deed,  or  make  it  admissible  in  evidence  without  the  common  law 
proof  of  its  execution.  1  bid. 

3.  A  husband  and  wife  conveyed  the  estate  of  the  wife  by  a  deed  defectively 
acknowledged,  and  after  the  death  of  the  wife,  the  heirs  at  law  brought  an 
ejectment  and  recovered  the  land,  and  remained  in  possession  of  it  for  seventeen 
years,  and  until  after  the  passage  of  the  act  of  assembly,  entitled  "  an  act  for  the 
better  confirmation  of  the  estates  of  persons  holding  or  claiming  under  femes  co- 
vert, and  for  establishing  a  mode  in  which  husband  and  wife  may  hereafter  con- 
vey their  estates."    It  was  held:  that  this  act  cured  the  defect  in  the  acknow- 
ledgement, so  as  to  enable  those  who  claimed  under  the  deed,  to  bring  an  action 
of  ejectment  and  recover  back  the  land.    Mercer  v.  Watson,  330. 

DEFENCE. 

EJECTMENT,  2. 
NEW  TRIAL,  2. 

1.  A  party  defendant  cannot  disaffirm  an  act  of  the  plaintiff,  as  being  fraudu- 
lent and  void,  and  at  the  same  time  predicate  a  claim,  as  matter  of  defence,  upon 
it.     Dunham  v.  Kinnear,  130. 

2.  A  purchaser  of  land,  who  has  given  his  bond  for  the  purchase  money,  may 
retain  for  incumbrances,  or  for  defect  of  title,  although  he  has  no  covenant  against 
incumbrances  ;  but  if  the  incumbrance  be  removed  after  suit  brought,  the  vendor 
may  recover,  but  must  pay  costs  up  to  the  time  when  the  incumbrance  was  re- 
moved, and  notice  of  it  to  the  purchaser.     Withers  v.  Atkinson,  236. 

3.  What  a  surety  may,  and  may  not  avail  himself  of  as  an  equitable  defence. 
Geddis  v.  Hawk,  280. 

4.  One  who  attends  to  the  trial  of  a  cause,  not  as  a  party,  but  upon  notice  by 
the  defendant,  because  of  a  liability,  the  amount  of  which  will  be  affected  by  the 
verdict  and  judgment,  may  give  evidence  to  lessen  or  defeat  a  recovery ;  if  he 
neglect  to  give  such  evidence,  ho  will  not  be  permitted  afterwards  to  give  it  in 
an  action  directly  against  himself,  by  the  defendant  in  the  first  suit.    Mehaffy  v. 
Lytle,  314. 

When  the  rules  of  court  require  a  defendant  to  give  notice  to  the  plaintiff  of 
special  matter,  which  he  intends  to  rely  upon  as  a  defence,  and  such  notice  is 
not  given,  the  evidence  should  be  rejected.  I  hid. 


INDEX.  547 

DEFENCE. 

5.  A  terre  tenant  having  had  an  opportunity  to  defend  his  title  against  the  lien 
of  a  judgment,  and  not  having  availed  himself  of  it,  is  concluded  ;  and  a  purcha- 
ser at  a  sheriff  "s  sale  upon  such  judgment  revived  with  notice  to  the  terre  tenant, 
is  entitled  to  recover  the  land  in  ejectment  against  him.  Kichner  v.  Dcnglcr,  424. 

DEPOSITION. 

PRACTICE,  1.  » 

DEVASTAVIT. 

ADMINISTRATION  BOND,  1. 

DEVISE. 

WILL,  1. 

1.  The  bequest  of  a  general  -power  of  disposal,  carries  the  absolute  property 
wherever  a  limited  interest  is  not  given;  such  power, being  a  principal  attribute 
of  ownership,  necessarily  implies  the  existence  of  it,  wherever  the  implication  is 
not  rebutted  by  the  bequest  of  a  special  interest  inconsistent  with  it.    Morris  v. 
Phaler,  389. 

2.  A,  after  devising  a  tract  of  land  to  the  children  of  his  son  John  who  was 
dead,  and  another  to  his  son  Tobias  ;  devised  one  hundred  acres  to  his  widow  for 
life,  and  after  her  death  "  to  the  male  heirs  of  Tobias,  if  any  he  gets,  in  fee;" 
and  "  for  want  of  male  heirs  of  Tobias,  to  go  to  the  male  heirs  of  his  son  John  in 
fee  ;"  "  the  said  one  hundred  acres  to  be  parted  and  valued  after  the  death  of  the 
widow,  by  five  men;"  but  if  no  grandchildren,  to  go  to  the  devisor's  children 
and  be  divided  among  them.    At  the  death  of  the  widow,  Tobias  was  single  and 
without  children,  but  afterwards  married  and  had  children.    Held,  that  the  lim- 
itations over  after  the  death  of  the  widow  were  concurrent  contingent  remain- 
ders, and  for  want  of  male  heirs  of  Tobias  at  her  death,  vested  irrevocably  in  the 
male  heirs  of  John.     Stehman  v.  Stehman,  466. 

A  limitation  is  not  to  be  deemed  an  executory  devise  if  it  may  by  any  prac- 
ticable construction  be  sustained  as  a  contingent  remainder.  Ibid. 

No  presumption  of  an  intent  to  die  intestate  as  to  any  part  of  the  estate,  is 
to  be  made,  where  the  words  of  the  testator  will  carry  the  whole.  Ibid. 

DISTRESS. 

INTESTATE, 1. 

DIVORCE. 

A  wife  may  file  her  bill  for  a  divorce,  a  mnculo  matrimonii,  under  the  act  of 
1815,  or  for  alimony,  under  that  of  1817,  at  her  election.  Light  v-  Light,  263. 

EJECTMENT. 

EVIDENCE,  5. 

TRUST,  4. 

1.  In  order  to  establish  the  ownership  of  a  warrant  in  the  name  of  another,  it 
is  competent  for  a  plaintiff  in  ejectment,  to  prove  that  they  under  whom  he 
claims,  took  it  out  of  the  office  ;  put  it  into  the  hands  of  the  deputy  surveyor; 
employed  chain  carriers,  &c. ;  procured  the  survey  to  be  made,  and  paid  the  ex- 
pense thereof :  without  first  proving  that  they  had  paid  the  purchase  money  for 
the  warrant.  Campbell  v.  Galbreath,  70. 

A  plaintiff  having  thus  established  the  ownership  of  a  warrant  to  be  in  three 


548  INDEX. 

EJECTMENT. 

individuals,  who  were  partners,  it  is  competent  for  him  to  give  in  evidence  the 
declarations  of  one  of  them,  made  at  an  early  period,  that  another  of  the  firm  was 
duly  authorized  to  act  for  himself  and  his  partners,  in  procuring  a  settlement  of 
the  land  to  be  made  :  and  after  this  was  proved,  an  agreement,  in  writing,  be- 
tween such  partner,  and  one  who  contracted  to  settle,  may  be  given  in  evidence  : 
the  settlement  not  having  been  made  by  such  contracting  party,  it  is  competent 
to  give  in  evidence  his  declarations,  made  at  the  time,  that  he  contracted  for  his 
son,  who  did  make  the  necessary  settlement  and  improvement.  Ibid. 

An  action  of  ejectment  may  be  maintained  in  the  name  of  the  warrantee, 
although  he  may  have  no  beneficial  interest  in  the  land,  and  may  not  have 
known  of  the  institution  of  the  action.  Ibid. 

A,  having  procured  a  warrant  for  land  "lying  north  and  west  of  the  rivers 
Ohio  and  Alleghany,  and  Conewango  creek,"  in  pursuance  of  the  act  of  3d  April 
1792,  did  not  comply  with  the  conditions -of  that  act,  in  making  a  settlement 
within  two  years;  bnt  after  the  lapse  of  that  time,  he  commenced  a  settlement 
and  improvement.  B,  immediately  after,  also  commenced  a  settlement  and  im- 
provement upon  the  same  land,  which  he  continued,  and  subsequently  obtained 
a  vacating  warrant  from  the  commonwealth,  reciting  the  fact  that  A  had  not 
complied  with  the  terms  of  the  act.  In  an  action  of  ejectment  between  parties 
holding  these  conflicting  titles,  it  was  held,  that  A's  previous  settlement,  although 
not  within  the  two  years,  gave  him  the  better  title  :  and  the  fact  of  his  settlement 
not  having  been  persevered  in,  was  sufficiently  accounted  for  by  the  interruption 
and  threats  of  B.  Ibid. 

2.  An  action  of  ejectment  was  brought,  and  a  verdict  and  judgment  for  the 
plaintiff;  an  ejectment  was  then  brought  by  the  defendant  in  the  first  action, 
and  a  verdict  and  judgment  for  him,  which  was  reversed  by  the  supreme  court; 
in  another  ejectment  by  the  plaintiff  in  the  second,  it  was  held,  that  the  verdict 
and  judgment  in  the  first,  and  reversal  of  the  judgment  in  the  second,  were  not 
a  bar  to  the  third  ejectment.    Mercer  v.  Watson,  330. 

An  ejectment  was  brought  against  several  defendants,  some  of  whom  were 
minors  at  the  institution  of  the  suit,  but  before  the  return  day  of  the  writ,  a 
guardian  was  appointed  for  them,  who  employed  counsel  to  defend,  and  who  did 
defend.  Held,  that  a  verdict  and  judgment  against  all  the  defendants  was  good. 
Ibid. 

3.  A  decree  for  specific  performance  of  an  agreement  respecting  the  purchase 
and  sale  of  land,  is  of  grace  and  not  of  right.    It  rests  in  the  discretion  of  the 
chancellor,  who  would,  for  any  thing  inequitable,  withhold  his  assistance  and 
leave  the  parties  to  their  legal  remedies  on  the  agreement.    An  ejectment  may 
be  sustained  to  enforce  an  equity,  but  only  as  a  substitute  for  a  bill,  and  subject 
to  all  those  considerations  by  which  a  claim  to  have  the  land  itself  may  be  de- 
feated.   Pennock  v.  Freeman,  401. 

EQUITY. 

EJECTMENT,  3. 

ERROR. 

APPROPRIATION,  1. 

EVIDENCE,  1. 

1.  An  order  of  the  court  approving  and  receiving  a  bond  from  a  surviving 
trustee  of  an  insolvent  debtor,  conditioned  for  the  discharge  of  his  duty,  is  not 
examinablc  in  the  supreme  court.  Stocrer  v.  ImmcH,  2T>8. 


INDEX.  549 

ERROR. 

2.  The  decision  of  the  common  pleas  confirming  a  sheriff's  sale,  and  ordering 
the  acknowledgement  of  the  deed  to  the  purchaser,  is  not  the  subject  of  a  writ  of 
error.    Rees  v.  Berryhill,  263. 

3.  This  court  will  not  reverse  a  judgment  for  error  in  the  instruction  of  the 
court  below  to  the  jury  on  one  point,  when  they  were  right  in  saying,  on  another 
point,  that  if  all  the  plaintiff's  evidence  be  true,  he  is  not  in  law  entitled  to  re- 
cover.   Malson  v.  Fry,  433. 

ESCHEAT. 

ADMINISTRATION  BOND,  2. 

EVICTION. 

INTEREST,  2. 

EVIDENCE. 

WITNESS,  1. 
PRACTICE,  1. 

1.  When  a  right  of  way  appurtenant  to  land  is  plainly  conveyed  by  the  terms 
of  a  deed,  it  is  incompetent  to  prove  by  parol  that  it  was  not  the  intention  of  the 
parties  that  it  should  be  conveyed.    And  upon  such  evidence  having  been  given, 
it  is  error  in  the  court  to  instruct  the  jury,  that  they  must  be  governed  in  making 
their  verdict  by  such  evidence  of  the  intention  of  the  parties.     Shepherd  v.  Wat- 
son, 35. 

2.  Copies  of  entries  in  the  books  of  the  land  office,  duly  certified  by  the  secre- 
tary, are  competent  evidence  to  prove  the  real  owner  of  a  warrant.     Oliphant  v. 
Ferran,  57. 

3.  In  an  action  for  hire,  a  contract  of  hire  must  be  proved ;  proof  of  a  loan  of 
the  property  will  not  support  the  action.    Dunham  v.  Kinnear,  130. 

4.  In  an  action  of  assumpsit,  a  bill  in  chancery  cannot  be  given  in  evidence 
as  an  admission  of  facts  against  the  complainant  himself,  except  in  the  case  of 
pedigree,  and  not  then,  unless  the  party  claims  or  derives  title  in  some  manner 
under  the  plaintiff  or  defendant  in  the  chancery  suit.     Owens  v.  Dawson,  149. 

5.  A  defendant  in  ejectment  will  not  be  permitted  to  avail  himself  of  a  breach 
of  contract,  in  relation  to  the  land  in  controversy,  by  one  under  whom  he  claims, 
in  order  to  exclude  evidence  which,  if  the  contract  had  been  complied  with, 
would  have  been  competent.    Reed  v.  Dickey,  152. 

The  declarations  of  one  under  whom  a  party  in  ejectment  claims  may  be 
given  in  evidence  against  him,  if  such  declarations  were  made  during  the  time 
the  witness  was  the  occupier  of  the  land.  Ibid. 

6.  Declarations  of  a  testator,  made  contemporaneously  with  his  will,  are  com- 
petent evidence  to  establish  a  trust  in  him  to  whom  an  absolute  estate  is  devised, 
when  followed  by  evidence  that  such  devise  was  obtained  by  the  fraudulent 

rocurement  of  the  devisee.    Hoge  v.  Hoge,  163. 

-;]^a  testator  be  induced  to  make  a  devise,  by  the  promise  of  the  devisee  that 
it  "should  be  applied  to  the  benefit  of  another,  a  trust  is  thereby  created,  which 
may  be  established  by  parol  evidence ;  and  this  is  not  contrary  to  the  statute  of 
wills.  Ibid. 

7.  A  witness  having  testified  to  what  was  sworn  to  before  arbitrators  by  a  per- 
son who  was  dead,  and  having  said  that  his  memory  had  b£eWtefreshed  since 
that  time  by  hearing  the  notes  of  the  deceased  witness's  testimony  read,  it  was 
held  to  be  a  proper  question  to  ask,  whether  he  had  not  heard  the  counsel  who 


550  INDEX. 

EVIDENCE. 

took  the  notes,  say  on  oath,  that  they  were  not  the  notes  of  the  evidence  taken 
before  the  arbitrators,  but  made  in  his  own  office,  of  what  he  expected  to  prove. 
WMiers  v.  Atkinson,  236. 

8.  A  list  of  and  abstract  from  a  number  of  receipts  made  by  a  third  person, 
and  which  the  parties,  at  the  time  it  was  made,  admitted  to  be  right  as  credits  in 
their  settlement,  is  not  competent  evidence  to  go  to  the  jury  on  the  part  of  the 
defendant  who  has  the  original  receipts  in  his  possession ;  the  receipts  them- 
selves  must  be  produced.    Hart  v.  Yunt,  253. 

9.  In  an  action  on  the  case  for  money  had  and  received,  a  release,  executed 
after  suit  brought,  may  be  given  in  evidence  upon  the  general  issue.    Lyon  v. 
Marclay,  271. 

Proof  having  been  given  that  a  declaration  was  made  at  a  certain  time  and 
place,  by  a  party;  it  is  competent  for  the 'adverse  party  to  prove,  by  another 
witness,  that  he  was  present,  and  did  not  hear  it.  Ibid. 

10.  To  receive  counter  evidence  of  facts,  adduced  to  make  way  for  the  rejec- 
tion of  other  evidence,  and  thus  draw  the  decision  of  the  cause  from  the  jury  to 
the  court,  is  error.    Fisher  v.  Kean,  278. 

11.  Parol  proof  of  a  particular  custom  should  not  be  suffered  to  control  the 
general  law  of  the  land.    Bollon  v.  Colder,  360. 

12.  Part  of  a  conversation  having  been  given  in  evidence  by  one  party,  the 
other  is  entitled  to  have  the  whole  conversation  from  the  same  witness.     Gordon 
v.  Preston,  385.  . 

13.  Testimony  taken  in  another  state  upon  a  joint  and  several  commission, 
may  be  read  in  evidence,  although  the  commissioner  named  by  the  defendant 
did  not  attend  at  the  execution  of  the  commission.     Pennock  v.  Freeman,  401. 

14.  A  record  cannot  be  contradicted,  and  must  be  tried  by  itself  when  in  ex- 
istence :  to  refer  to  a  jury  to  decide  the  fact  when  a  judgment  was  entered  is 
error.    Adams  v.  Betz,  425. 

EXECUTION. 

CERTIORARI,  2. 

1 .  In  an  action  upon  a  bond  conditioned  for  the  payment  of  several  sums  at 
different  periods,  in  which  breaches  had  not  been  assigned,  no  defence  having 
been  made,  a  judgment  was  rendered  pursuant  to  a  rule  of  court ,  upon  which 
the  plaintiff  took  out  execution,  as  well  for  the  instalments  due  at  the  time  suit 
was  brought,  as  for  those  not  ^hen  due,  but  which  had  become  duo  afterwards. 
Held,  that  such  execution  waa  erroneous,  and  that  the  plaintiff  was  not  entitled 
to  execution  for  the  sums  whi A  became  due  after  suit  brought,  without  being 
put  to  a  scire  facias.     Longstreaf^Gray,  60. 

2.  The  validity  of  an  executioukke  that  of  a  judgment,  can  not  be  inquired 
into  collaterally.     Stewart  v.  Stock 

EXECUTORS  AND  ADMINISTRA' 
ADMINISTRATION,  1. 
SCIRE  FACIAS,  2. 

FEIGNED  ISSUE. 

When  money  is  made  by  the  sheriff,  and  brought  into  court  for  appropria- 
tion, and  facts  are  disputed,  it  is  competent  for  the  court  to  direct  an  issue  in 
which  the  truth  of  those  facts  may  be  ascertained  by  a  jury,  and  such  issue  may 
be  put  into  any  form  by  which  the  object  may  be  more  readily  attained.  Stetoart 
v.  Stacker,  135. 


INDEX.  551 

FRAUD. 

COMPROMISE,  1. 

Fraud  prevents  the  operation  of  the  statute  of  limitation,  and  it  does  not 
commence  to  run  until  the  discovery  of  the  fraud.  Rush  v.  Barr,  110. 

FRAUDS  AND  PERJURIES. 

Part  performance  of  a  parol  contract  for  the  sale  of  land  is  essential  to  its 
validity.  Peifer  v.  Landis,  392. 

GIFT. 

TRUST,  3. 

GUARDIAN. 

SURETY,  3. 

The  appointment  of  a  guardian,  and  an  act  done  by  him  in  pursuance  of 
such  appointment,  is  such  evidence  of  general  guardianship  as  will  defeat  an 
action  ex  contractu  by  the  ward  against  the  guardian,  until  his  account  is  first 
settled  by  the  orphan's  court.  JVwiz  v.  Reutter,  229. 

HABEAS  CORPUS: 

The  supreme  court  will  not  discharge  a  prisoner  from,  a  commitment  upon 
a  capias  ad  satisfaciendum  issued  out  of  the  court  of  common  pleas.  Common- 
wealth v.  Lecky,  66. 

HEIRS. 

SCIRE  FACIAS,  2. 

HIGHWAY. 

A  stage  coach  passing  upon  a  public  highway,  is  protected  by  an  act  of 
congress  from  wilful  and  wanton  obstruction  or  delay ;  but  in  every  other  respect 
it  is  on  a  footing  with  all  other  carriages.  Bolton  v.  Colder,  360. 

A  traveller  may  use  the  middle  or  either  side  of  a  public  road  at  his  plea- 
sure, and  without  being  bound  to  turn  aside  for  another  travelling  in  the  same 
direction,  provided  there  be  convenient  room  to  pass  on  the  one  hand  or  on  the 
other.  Ibid. 

HUSBAND  AND  WIFE. 

ABATEMENT,  1. 

LIEN,  6. 

A  wife  cannot  be  joined  with  her  husband  as  a  defendant  in  an  action 
founded  upon  a  contract  or  promise  express  or  implied,  unless  she  made  the 
contract  or  promise,  or  did  the  act  from  which  it  was  to  be  implied,  before 
coverture,  when  she  must  be  joined  with  her  husband.  Nutz  v.  Reutter,  229. 

In  an  action  ex  contractu  against  several,  it  must  appear  by  the  pleadings 
that  the  contract  was  joint,  and  that  fact  must  be  proved ;  but  with  regard  to  the 
promise  of  a  husband  and  wife,  it  must  in  law  be  considered  and  treated  as  the 
promise  of  the  husband  alone.  Ibid. 

INDENTURE. 

1.  A  citizen  of  the  district  of  Columbia  removed  into  Pennsylvania  to  reside, 
and  brought  with  her  a  slave,  who  in  consideration  of  manumission,  with  the 
consent  of  her  mother,  bound  herself  by  indenture  to  serve  for  seven  years. 


552  INDEX. 

INDENTURE. 

//</</.•  that  such  indenture,  having  been  executed  in  Pennsylvania,  is  void,  and 
the  slave  is  entitled  to  her  liberty.     Commonwealth  v.  Cook,  155. 

2.  And  such  indenture  is  void,  although  made  in  pursuance  of  a  parol  agree- 
ment entered  into  in  the  District  of  Columbia.  Commonwealth  v.  Robinson,  158. 

INSOLVENT. 

Where  judgment  is  obtained  against  one  who  had  taken  the  benefit  of  the 
insolvent  laws,  after  his  discharge,  and  a  sale  is  made  of  land  which  was  his 
when  he  was  discharged,  under  such  judgment  the  sale  is  only  of  what  interest, 
if  any,  that  remained  in  him,  and  the  judgment  creditor,  and  not  his  assignee  or 
trustee,  is  entitled  to  the  proceeds  of  the  sale.  Ebright  v.  The  Bank,  397. 

INTEREST. 

1.  Interest  beyond  the  penalty  of  a  bond  may  be  recovered  in  a  court  of  law 
in  the  shape  of  damages.     Boyd  v.  Boijd,  365. 

2.  The  possession  of  land  is  equivalent  to  the  interest  upon  the  purchase 
money;  and  in  an  action  to  recover  back  purchase  money  paid  for  land,  interest 
is  recoverable  from  the  time  of  eviction,  when  that  eviction  proceeds  from  a  prior 
incumbrance,  and  not  paramount  title.     Gulp  v.  Fisher,  494. 

INTESTATE. 

A  widow  of  an  intestate,  whose  annual  interest  is  charged  on  the  land 
taken,  is  entitled  to  come  in  under  the  fourteenth  section  of  the  act  of  1794,  as 
against  the  personal  estate  of  the  terre  tenant  for  one  year's  interest  as  rent,  and 
this,  by  construction  of  the  sixth  section  of  the  act  of  1807,  which  provides,  that 
her  interest  "  may  be  recovered  by  action  of  debt  or  by  distress,  as  rents  are  usu- 
ally recovered  in  this  commonwealth."  Turner  v.  Hauser,  420. 

By  distraining  the  goods  of  the  terre  tenant  after  his  death,  where  more  than 
one  year's  interest  is  in  arrear,  the  widow  cannot  obtain  more  than  one  year's 
interest,  and  thus  defeat  the  order  of  payment  prescribed  by  the  act  of  1794.  Ibid. 

JUDGMENT. 

WITNESS,  2. 
SCIRE  FACIAS,  1,  2. 
LIEN,  1,2,  3,  6,  7,  8,  9.. 
TRIAL,  1. 
CERTIORARI,  2. 

1.  A  confession  of  judgment,  "  sum  to  be  liquidated  by  attorney,"  operates  as 
a  lien  upon  the  defendant's  real  estate,  although  not  afterwards  liquidated. 
Commonwealth  v.  Baldwin,  54. 

A  judgment  in  the  name  of  the  treasurer,  for  the  use  of  the  commonwealth, 
is  substantially  a  judgment  of  the  commonwealth,  so  as  to  exempt  it  from  the 
operation  of  a  statute,  limiting  the  period  for  which  a  judgment  shall  continue  a 
lien.  Ibid. 

The  lien  of  a  judgment  in  favour  of  the  commonwealth  is  not  lost  by  lapse 
of  time.  Ibid. 

2.  In  an  action  of  debt  against  two  or  more,  a  confession  of  judgment  by  one 
defendant,  accepted  by  the  plaintiff,  operates  as  a  release  of  all  the  other  defend- 
ants, against  whom  no  judgment  can  afterwards  be  obtained  in  that  action  or 
any  other  upon  the  same  evidence  of  debt ;  and  whether  that  evidence  of  debt 


INDEX.  553 

•H 
JUDGMENT. 

be  a  joint,  or  a  joint  and  several  obligation  does  not  alter  the  rule.    Beltzhoover 
v.  The  Commonwealth,  126. 

3.  A  mortgage  or  judgment  may  be  given  to  secure  a  creditor  for  a  debt  due, 
for  responsibilities  which  are  contingent,  or  for  future  advances.     Stewart  V. 
Stacker,  135. 

4.  A  bond  given  by  executors,  conditioned  for  the  faithful  discharge  of  their  du- 
ties, in  pursuance  of  an  order  of  the  orphan's  court,  was  sued  by  one  legatee  in 
the  name  of  the  commonwealth  for  his  own  use,  and  a  judgment  was  obtained  by 
award  of  arbitrators  for  the  amount  of  the  penalty,  with  the  right  to  take  out 
execution  for  the  amount  of  his  damages ;  these  damages  were  paid  by  the  de- 
fendant, and  the  legatee  entered  satisfaction  on  the  judgment.     Held,  that  such 
satisfaction  extended  only  to  the  interest  of  that  legatee,  and  a  scire  facias  may 
be  issued  upon  the  judgment  to  enable  any  other  of  the  legatees  to  recover  their 
legacy ;  and  a  legatee  whose  legacy  did  not  become  due  until  after  the  date  of 
the  judgment  may  also  maintain  a  scire  facias  upon  it.     Jlrrison  v.  The  Common- 
wealth, 374. 

Such  a  judgment  is  final  and  not  interlocutory,  and  is  a  lien  upon  all  the 
lands  of  the  defendant  in  the  county  where  it  is  rendered  ;  but  its  lien  is  limited 
to  five  years  by  force  of  the  act  of  1798.  I  bid. 

Another  legatee  having  sued  the  same  bond  and  obtained  judgment  for  the 
penalty  with  the  right  to  take  out  execution  for  the  amount  of  his  legacy  :  it  was 
held,  that  although  the  first  suit,  if  it  had  been  pleaded,  would  have  been  a  bar 
to  the  second  ;  yet  the  circumstance,  of  its  having  been  paid,  and  satisfaction 
entered  upon  the  record,  did  not  in  any  way  affect  the  judgment  in  the  first  suit, 
or  the  right  of  any  legatee  or  party  in  interest  to  maintain  a  scire  facias  upon  it, 
Ibid. 

LEGACY. 

A  legacy  to  a  child  vested,  but  not  charged  on  land,  and  payable  with  interest, 
by  the  terms  of  the  will,  at  twenty-one,  shall  nevertheless  be  paid  presently  at  the 
death  of  the  child,  should  that  event  happen  before  the  time  of  payment  origi- 
nally appointed.  But  where  it  is  presumed  from  the  circumstances  and  the 
condition  of  the  estate,  that  the  postponement  was  intended  for  the  benefit  of 
others,  the  time  of  payment  will  not  be  hastened  by  the  death  of  the  legatee. 
Nor  will  the  payment  be  hastened  by  his  death  in  any  case  when  the  legacy  ia 
charged  upon  land.  Jacobs  v.  Bull,  370. 

LIEN. 

SCIRE  FACIAS,  1. 

1 .  The  issuing  of  a  scire  facias,  which  is  returned  niltil,  will  not  operate  to 
continue  the  lien  of  a  judgment  beyond  five  years;  nor  will  the  issuing  of  a.  fieri 

facias  so  operate,  since  the  passage  of  the  act  of  1827.     Westmoreland  Bank  v. 
Rainey,  26. 

A  plaintiff  having  two  judgments,  which  are  liens  on  real  estate  sold  by  the 
sheriff,  cannot  apply  the  proceeds  to  either  judgment,  at  his  option,  by  which 
indorsers  may  be  affected  ;  but  the  law  will  appropriate  the  fund  to  the  older 
judgment,  whose  lien  is  regularly  preserved.  Ibid. 

2.  An  execution  issued  and  levied  upon  land  preserves  the  lien  of  the  judg- 
ment as  to  the  land  levied  only  ;  if  no  scire  facias  be  issued  within  five  years, 
the  lien  as  to  all  other  lands  is  gone.     Brown  v.  Campbell,  41. 

3  u 


554  INDEX. 

LIEN. 

3.  A  confession  of  judgment,  "  sum  to  bo  liquidated  by  attorney,"  operates  as 
a  lien  upon  the  defendant's  real  estate,  although  not  afterwards  liquidated.     Com' 
monwealth  v.  Baldwin,  54. 

A  judgment  in  the  name  of  the  treasurer,  for  the  use  of  the  commonwealth,  is 
substantially  a  judgment  of  the  commonwealth,  so  as  to  exempt  it  from  the  ope- 
ration of  a  statute,  limiting  the  period  for  which  a  judgment  shall  continue  a 
lien.  I  bill. 

The  lien  of  a  judgment  in  favour  of  the  commonwealth  is  not  lost  by  lapse  of 
time.  Ibid. 

4.  The  lien  on  land  which  a  widow  has  for  her  interest  by  the  intestate  laws, 
is  not  divested  by  a  sheriff's  sale  of  that  land,  upon  a  judgment  whose  lien  was 
subsequently  obtained.    Fisher  v.  Kean,  259. 

5.  A  lien  is  a  necessary  and  inseparable  incident  of  seizure  in  execution  by 
the  principles  of  the  common  law.    A  treasurer's  warrant,  therefore,  against  a 
delinquent  collector  of  taxes,  levied  on  his  real  estate, creates  a  lien  thereon,  which 
will  have  priority  to  subsequently  entered  judgments,  and  a  sale  of  the  estate 
npon  such  proceeding  will  vest  in  the  purchaser  a  good  title.    Stauffer  v.  The 
Commissioners,  300. 

6.  A  judgment  against  the  husband  of  an  heir  at  law  is  a  lien  against  his  life 
estate,  and  upon  a  sale  made  by  the  administrator  of  the  ancestor  of  the  whole 
estate,  by  virtue  of  the  intestate  laws,  such  judgment  creditor  is  entitled  to  be 
paid  the  amount  of  his  judgment,  when  the  proceeds  due  and  payable  to  such 
husband  are  sufficient  for  that  purpose.    Beard  v.  Deitz,  309. 

7.  After  the  lapse  of  five  years  from  the  rendition  of  the  original  judgment, 
hinds  which  were  originally  bound  by  its  lien  are  discharged.    Arrison  v.  The 
Commonwealth,  374. 

8.  Land  purchased  by  a  sheriff,  after  he  enters  into  his  official  recognizance, 
is  not  bound  by  that  recognizance,  but  if  judgment  is  obtained  upon  it,  after  he 
acquires  such  land,  the  land  is  bound  by  the  judgment.     Pricker's  Appeal,  393. 

The  lien  of  a  judgment  opened  to  let  the  defendant  into  a  defence,  "  the  judg- 
ment to  remain  as  security,"  was  not  lost  by  the  lapse  of  five  years  from  its 
entry,  before  the  act  of  the  26th  of  March  1827,  although  the  entry  of  the  rule 
and  order  of  the  court  opening  the  judgment,  be  made  on  the  execution  docket, 
to  the  entry  of  the  execution  which  had  issued  on  such  judgment.  Ibid. 

The  act  of  the  2Gth  of  March  1827  requires  a  scire  facias  to  be  issued  te  pre- 
serve the  lien  in  such  case,  and  the  lien,  since  that  act,  would  not  be  preserved 
by  a  rule  tying  up  the  proceedings.  Ibid. 

9.  A  judgment  the  lien  of  which  was  preserved  by  execution  and  levy  on  land 
at  the  time  of  the  passage  of  the  acts  of  the  26th  of  March  1827  and  the  23d  of 
March  1829,  is  required  by  those  acts  to  be  revived  within  the  term  of  one  year 
from  the  date  of  the  latter  act ;  and  if  not  revived  in  that  time  the  Ken  expires  ; 
and  this,' although  execution  was  out  upon  it  at  the  time,  and  a  sale  made  of  the 
land  in  six  days  only  after  the  term  in  the  act  had  expired.    Ebright  v.  The  Bank, 
397. 

LIMITATION. 

1.  The  fourth  section  of  the  act  of  4th  April  1797,  which  provides  that  no  debts 
of  a  decedent,  unless  they  be  secured  by  mortgage,  judgment,  recognizance  or 
other  record,  shall  remain  a  lien  on  lands  and  tenements  longer  than  seven  years 
after  the  decease  of  such  debtor,  unless  suit  be  brought  within  seven  years,  or  a 
statement  of  the  debt  be  filed  in  the  prothonotary's  office,  is  a  statute  of  limita- 


INDEX.  555 

LIMITATION. 

tion  and  repose,  and  protects  not  only  bonafide  purchasers,  butheirs  and  devisees 
and  those  claiming  under  them.    Kerper  v.  Hock,  9. 

Where  nearly  nine  years  after  the  death  of  intestate,  suit  was  brought  and 
judgment  had  against  his  estate,  it  was  held  that  the  person  so  obtaining  judg- 
ment could  not  come  in  upon  any  portion  of  the  parcels  of  land  taken  by  the 
intestate's  son  under  a  writ  of  partition  and  valuation  of  the  real  estate  of  his 
father,  and  sold  by  virtue  of  judgments  against  the  son,  neither  as  against  the 
creditor  of  the  son,  nor  the  son  himself.  Ibid. 

2.  Whenever  the  legal  title  to  land  is  in  one  person,  and  the  real  interest  in  an- 
other, they  form  but  one  title,  and  the  statute  of  limitation  does  not  run  between 
the  holders  of  such  title,  until  the  trustee  disclaims  and  acts  adversely  to  the 
cestui  que  trust ;  and  such  disclaimer  must  be  made  known.     Rush  v.  Barr,  110. 

Fraud  prevents  the  operation  of  the  statute  of  limitation,  and  it  does  not  com- 
mence to  run  until  the  discovery  of  the  fraud.  Ibid. 

3.  There  must  be  an  acknowledgement  of  an  existing  debt  within  six  years,  to 
prevent  the  operation  of  the  statute  of  limitations.     Lyon  v.  Marclay,  271. 

Cases  of  trust,  not  to  be  reached  or  affected  in  equity  by  the  statute  of  limita- 
tions, are  those  technical  and  continuing  trusts,  which  are  not  at  all  cognizable 
at  law,  but  fall  within  the  proper,  peculiar,  and  exclusive  jurisdiction  of  courts  of 
equity  :  it  must  be  a  direct  trust,  belonging  exclusively  to  the  jurisdiction  of  a 
court  of  equity,  and  the  question  must  arise  between  the  trustee  and  cestui  que 
trust.  I  bid. 

4.  Nothing  short  of  an  actual,  continued,  visible,  notorious,  distinct  and  hos- 
tile possession  of  land  for  twenty-one  years,  will  enable  a  defendant  to  avail  him- 
self of  the  statute  of  limitations.     And  if  his  possession  be  obtained  by  virtue  of 
a  writ  of  habere facias  possessionem,  the  twenty-one  years  will  commence  to  run 
from  the  execution  of  that  writ,  and  not  from  the  date  of  the  demise  laid  in  the 
declaration  in  the  action  wherein  that  issued.    Mercer  v.  Watson,  330. 

5.  Against  a  right  of  action,  dependent  on  the  existence  of  a  secret  fraud,  the 
statute  of  limitations  runs  but  from  the  period  of  discovery.    Pennock  v.  Free- 
man, 401. 

6.  The  facts  of  one  in  possession  of  land  having  been  driven  from  it  by  a  flood 
or  other  accident,  and  when  out  kept  out  of  possession  by  the  force  of  an  adverse 
claimant ;  although  he  may  continue  to  endeavour  to  obtain  the  possession,  yet 
the  statute  of  limitations  will  be  a  bar  to  his  recovery,  after  such  adverse  claimant 
has  been  in  possession  twenty-one  years.    Malson  v.  Fry,  433. 

7.  The  presumption  of  law  that  a  debt  has  been  paid,  or  a  right  of  way  has 
been  granted,  or  a  bond  or  mortgage  or  legacy  has  been  satisfied,  are  those  de- 
ductions from  the  existence  of  a  fact,  to  which  a  legal  effect  is  attached  beyond 
their  nature  and  operation.    They  are  either  conclusive,  and  may  be  made  by 
the  court,  or  inconclusive  and  can  only  be  found  by  a  jury.     It  is  not  so  much  a 
presumption  that  the  money  has  been  paid,  or  a  right  of  way  granted,  as  it  is  the 
substitution  of  an  artificial  rule  in  the  place  of  evidence  or  belief,  after  a  delay 
which  may  have  been  destructive  of  the  evidence  on  which  a  belief  might  be 
justly  founded.     Summerville  v.  HolKday,  507. 

Where  a  presumption  of  payment  from  the  lapse  of  time  is  not  repelled  by 
circumstances  accounting  for  the  delay,  it  is  the  duty  of  the  court  to  instruct 
the  jury  that  they  are  bound  by  the  legal  presumption  ;  but  where  there  is  some 
circumstance  given  in  evidence  to  account  for  the  delay,  it  is  the  duty  of  the 
court  to  refer  to  the  jury,  as  an  open  question  of  fact,  to  determine  as  to  actual 
payment.  Ibid. 


556  INDEX. 

MORTGAGE. 

CORPORATION,  1. 
SCIRE  FACIAS,  3. 

1.  A  mortgage  or  judgment  may  be  given  to  secure  a  creditor  for  a  debt  due, 
for  responsibilities  which  are  contingent,  or  for  future  advances.     Stewart  v. 
Stacker,  135. 

2.  A  covenant  by  a  mortgagee  that  he  will  not  proceed  to  collect  the  money 
sen u red  by  his  mortgage  by  a  sale  of  one  of  several  tracts  of  land  mortgaged, 
which  had  been  separated  and  sold  by  the  mortgagor  to  a  third  person,  will  not 
release  other  tracts  from  the  lien  of  the  mortgage,  or  discharge  them  from  liability 
to  pay.     Culp  v.  Fisher,  494. 

A  formal  release  of  one  of  several  tracts  of  land  from  the  lien  of  a  mortgage, 
will  not  discharge  the  other  lands  from  the  incumbrance.  Ibid. 

A  mortgagor,  in  the  possession  of  the  mortgaged  lands,  sold  one  tract,  and 
gave  a  bond  to  the  purchaser  to  indemnify  him  against  the  mortgage ;  the  mort- 
gage was  afterwards  sued,  and  judgment  obtained  against  the  terre  tenant,  with- 
out actual  notice  to  the  mortgagor,  upon  which  the  land  was  levied  and  sold : 
in  an  action  upon  the  bond  of  indemnity  it  was  held,  that  if  the  mortgagor  had 
notice  of  the  suit  upon  the  mortgage  he  would  have  been  concluded,  and  obliged 
to  repay  the  purchase  money  to  the  plaintiff;  if  he  had  not  notice  of  it,  he  might 
make  the  same  defence  in  the  suit  upon  the  bond,  that  he  might  have  made 
upon  that  on  the  mortgage.  Ibid. 

MORTMAIN. 

The  statutes  of  mortmain  have  been  extended  to  this  state  so  far  as  they  prohibit 
dedications  of  property  to  superstitious  uses,  and  grants  to  corporations  without 
a  statutory  license.  Methodist  Church  v.  Remington,  218. 

NEW  TRIAL. 

1.  The  admission  of  irrelevant  testimony  by  the  circuit  court  is  no  cause  for  a 
new  trial,  unless  it  appears  to  have  done  an  injury  to  the  party.    Boyd  v.  Boyd, 
365. 

2.  If  it  be  the  opinion  of  the  court,  that  all  the  facts  given  in  evidence  by  a 
plaintiff,  if  true,  fail  to  establish  his  right  to  recover ;  it  is  their  duty  so  to  instruct 
the  jury.    And  if  a  jury  should  find  a  verdict  against  such  instruction,  a  new 
trial  ought  to  be  granted.    Malson  v.  Fry,  433. 

NOTICE. 

DEFENCE,  2,  4,  5. 
SCIRE  FACIAS,  3. 
MORTGAGE,  2. 

PAROL  CONTRACT. 

Part  performance  of  a  parol  contract  for  the  sale  of  land  is  essential  to  its 
validity.  Peifer  v.  Landis,  392. 

PARTITION. 

1.  An  unexecuted  parol  partition  is  void;  and  it  is  still  parol  when  made  by 
the  intervention  of  agents  acting  by  virtue  of  a  parol  authority,  though  their  act 
be  evinced  by  a  writing  under  seal.  Snivcly  v.  Luce,  69. 

2  Upon  an  amicable  partition  of  lauds  between  tenants  in  common,  or  a  sale 
founded  upon  such  partition,  by  which  money  is  payable  to  one  of  the  tenants 


INDEX.  557 

PARTITION. 

in  common,  an  action  may  be  maintained  by  him  for  its  recovery  against  another 
tenant  in  common,  who  took  or  purchased  the  land,  with  notice  to  a  terre  tenant, 
to  whom  the  land  had  been  subsequently  conveyed.  Long  v.  Long,  265. 

In  such  an  action  the  defendant  who  took  or  purchased  the  land  would  not 
be  a  competent  witness  to  establish  the  liability  of  the  terre  tenant.  Ibid. 

3.  In  a  proceeding  in  partition  by  one  plaintiff  against  several  defendants,  the 
inquest  must  set  out  in  severally,  not  only  the  part  of  the  plaintiff  but  of  each  of 
the  defendants  ;  and  if  the  land  can  not  be  divided  so  as  to  accommodate  each 
severally,  it  must  be  valued ;  without  such  valuation  the  inquisition  is  irregular. 
WetherUL  v.  Keim,  320. 

PARTY. 

ACTION,  3,  4. 
DEFENCE,  1,  4,  5. 
SCIRE  FACIAS,  2,  3. 

PENALTY. 

INTEREST,  1. 

PLEADING. 

The  court  may,  at  any  time,  to  prevent  injustice,  or  for  special  reasons,  per- 
mit a  plea  to  be  put  in  nunc  pro  tune ;  and  a  plea  puis  darrein  continuance, 
although  a  continuance  has  intervened.  Lyon  v.  Marclay,  271. 

A  plea  puis  darrein  continuance  waives  all  former  pleas.    Ibid. 

PRACTICE. 

PLEADING,  1. 
DEFENCE,  4. 

Under  the  forty-second  rule  of  the  circuit  court,  if  a  witness  resides  more  than 
forty  miles  from  the  court,  his  deposition  may  be  read,  although  he  has  not  been' 
served  with  a  subpoena.    Pennock  v.  Freeman,  401. 

RECORD. 

EVIDENCE,  15. 

RELEASE. 

TRUST,  3. 

MORTGAGE,  2. 

In  an  action  of  debt  against  two  or  more,  a  confession  of  judgment  by  one  de- 
fendant, accepted  by  the  plaintiff,  operates  as  a  release  of  all  the  other  defend- 
ants, against  whom  no  judgment  can  afterwards  be  obtained  jn  that  action  or  any 
other  upon  the  same  evidence  of  debt ;  and  whether  that  evidence  of  debt  be  a 
joint  or  a  joint  and  several  obligation  does  not  alter  the  rule.  Beltzhoover  v. 
The  Commonwealth,  126. 

REMEDY. 

1.  A  proceeding  which  is  imperfect  when  the  act  of  assembly  under  which  it 
was  begun  expires,  cannot  be  perfected :   what  is  done  afterwards  is  void. 
Stoever  v.  Immell,  258. 

2.  A  remedy  having  been  provided  by  statute,  proceedings  were  instituted 
under  it,  but  during  their  pendency  the  statute  was  repealed  ;  held,  that  the 


558  INDEX. 

REMEDY. 

remedy  was  thereby  taken  away ;  and  any  further  proceeding  to  enforce  it  ille- 
gal.    Commonwealth  v.  Bcaity,  382. 

RENT. 

INTESTATE, 1. 

ROAD. 

A  review  of  a  road  is  a  matter  of  right ;  but  upon  the  report  of  the  reviewers 
having  been  made,  the  court  may,  at  their  discretion,  adopt  it  or  the  report  of 
the  viewers.  Bachmari's  Road,  400. 

SCIRE  FACIAS. 

EXECUTION,  1. 
JUDGMENT,  4. 

1.  A  scire  facias  which  does  not  properly  recite  the  original  judgment,  will  not 
continue  its  lien,  although  after  the  five  years  have  elapsed  the  court  permit  the 
scire  facias  to  be  amended  so  as  to  recite  it  properly.    Arrison  v.  Commonwealth, 
374. 

2.  A  scire  facias  to  revive  a  judgment  after  the  death  of  the  defendant,  must 
be  sued  against  his  executors  or  administrators :  they  must  be  made  parties  to  it. 
If  sued  only  against  the  heirs  in  possession  of  the  inheritance,  it  is  erroneous. 
Brown  v.  Webb,  411. 

3.  A  writ  of  scire  facias  upon  a  mortgage  need  not  be  served  upon  the  terre 
tenant  of  the  mortgaged  premises,  to  make  him  a  party  to  the  proceeding.     A 
title  by  the  sheriff  upon  a  judgment  against  the  mortgagor  alone  is  good.    Mather 
v.  Clark,  491. 

In  an  ejectment  against  a  terre  tenant  of  mortgaged  premises  by  the  purchaser 
at  sheriff's  sale,  the  defendant  may  avail  himself  of  any  defence  which  he  might 
have  made  if  he  had  been  a  party  to  the  scire  facias  suit.  But  if  he  had  been 
served  with  notice  of  the  suit  upon  the  mortgage,  the  judgment  would  have  been 
conclusive  upon  him  and  his  title.  Ibid. 

SEAL. 

COMMISSIONER'S  SALE,  1. 

CORPORATION,  1. 

An  horizontal  slit  in  the  parchment  upon  which  a  conveyance  is  written, 
with  a  ribbon  drawn  through  it  opposite  the  names  of  the  grantors  and  the  jus- 
tice before  whom  the  acknowledgement  was  made,  is  not  a  sufficient  seal  to 
constitute  a  deed.  Duncan  v.  Duncan,  322. 

SETTLEMENT. 

Under  the  act  of  the  3d  of  April  1792,  taken  in  connexion  with  the  acts  of  22d 
of  April  1794, 22d  of  September  1794,  2d  of  April  1802,  and  3d  of  April  1804,  if  an 
original  warrantee  has  neglected  to  commence  the  settlement,  improvement  and 
residence  mentioned  in  the  first  of  these  acts,  for  the  space  of  two  years  from  the 
date  of  his  warrant,  it  is  lawful  for  any  one  to  enter  and  take  possession  of  the 
land  as  a  settler,  for  the  condition  broken  on  the  part  of  the  warrantee,  without 
having  first  procurred  a  vacating  warrant.  Riddle  v.  Albert,  121. 

Actual  improvement  and  settlement  are  essential  to  the  right  of  any  one  to 
have  a  vacating  warrant.  Ibid.  • 

Upon  such  improvement  and  actual  settlement  having  been  made,  the  actual 


INDEX.  559 

SETTLEMENT. 

settler  may  defend  himself  against  the  original  warrantee,  or  recover  in  eject- 
ment against  him.    Ibid. 

SLANDER. 

DECLARATION,  1. 

In  an  action  of  slander  the  declaration  set  out,  that  the  defendant  had  charged 
the  plaintiff  with  having  had  criminal  connection  with  a  woman,  and  the  innu- 
endo explained  the  words  to  mean,  that  the  defendant  had  thereby  charged  the 
plaintiff  with  the  crime  of  adultery  ;  a  judgment  for  the  plaintiff  on  this  declara- 
tion was  held  to  be  good,  although  it  was  not  alleged  that  the  plaintiff  was  a 
married  man.  Beirer  v.  Bushfield,  23. 

A  judgment  in  slander  will  not  be  reversed  because  the  words  are  laid  to  have 
been  spoken  the  day  on  which  the  writ  issued,  which  was  two  days  after  the 
date  of  the  pracipe.  I  bid. 

SLAVE. 

1.  A  citizen  of  the  District  of  Columbia  removed  into  Pennsylvania  to  reside, 
and  brought  with  her  a  slave,  who  in  consideration  of  manumission,  with  the 
consent  of  her  mother,  bound  herself  by  indenture  to   serve  for  seven  years. 
Held :  That  such  indenture,  having  been  executed  in  Pennsylvania,  is  void,  and 
the  slave  is  entitled  to  her  liberty.     Commonwealth  v.  Cook,  155. 

2.  An  indenture  executed  in  Pennsylvania,  by  a  slave  from  the  District  of 
Columbia,  by  which  he  bound  himself  to  serve  for  seven  years  in  consideration 
of  manumission,  is  void;  although  made  in  pursuance  of  a  parol  agreement  en- 
tered into  in  the  district  of  Columbia.     Commonwealth  v.  Robinson,  158. 

STATEMENT. 

A  statement  in  an  action  of  assumpsit,  which  is  defective  for  want  of  the  date 
when  the  assumption  was  made,  is  cured  by  a  verdict ;  so  also  where  the  consi- 
deration for  the  assumption  is  not  stated.  Graff  v.  Graybill,  428. 

In  an  action  of  assumpsit,  where  the  writ  demanded  a  sum  not  exceeding  600 
dollars,  a  verdict  and  judgment  for  1300  dollars,  made  up  of  a  principal  less  than 
600  dollars  and  interest,  is  good.  Ibid. 

Upon  a  statement  in  an  action  of  assumpsit,  claiming  800  dollars,  the  plaintiff 
may  recover  1300  dollars,  if  the  excess  above  the  800  dollars  be  made  up  of 
interest.  I  bid. 

STATUTE. 

MORTMAIN,  1. 

REMEDY,  1,2. 

A  statutory  remedy  is  taken  away  by  a  repeal  of  the  statute ;  although  the 
proceeding  may  have  commenced.  Stoever  v.  Immell,  258.  Commonwealth  v. 
Beatty,  382. 

SUFERSEDEAS. 

An  appeal  from  a  decree  of  the  orphan's  court,  ordering  a  sale  of  real  estate 
for  the  payment  of  debts,  is  a  supersedeas  to  such  sale.  Hess's  Appeal,  255. 

SURETY. 

1.  The  neglect  of  an  obligee  or  payee  to  sue  the  principal  when  requested  by 
the  surety,  will  not  discharge  such  surety  from  his  obligation,  unless  the  request 


560  INDEX.      . 

SURETY. 

be  accompanied  by  an  explicit  declaration  by  the  surety ,  that  if  suit  be  not  brought 
he  will  consider  himself  discharged.    Erie  Bank  v.  Gibson,  143. 

2,  A  creditor  is  not  bound  to  resort  to  the  principal  for  the  collection  of  his 
debt,  in  the  first  instance  ;  nor  is  he  bound  to  resort  first  to  a  lien  which  secures 
his  debt,  but  lie  may  sue  and  recover  from  a  surety.     Geddis  v.  Hawk,  280. 

What  a  surety  may  and  may  not  avail  himself  of  as  an  equitable  defence.     Hid. 

3.  Where  the  condition  of  a  recognizance  was,  that  the  principal  would  "  do 
and  perform  all  the  things  required  by  law  of  him  as  guardian  as  aforesaid,  and 
shall  faithfully  account  with  said  minor,  and  pay  over  all  such  sums  of  money  as 
may  come  to  his  hands  according  to  the  direction  of  the  court."     Held  :  on  tiscire 
facias  against  the  surety  on  this  recognizance,  that  he  could  not  be  charged  with 
the  money  reported  to  be  due  by  his  principal  to  the  ward,  by  referees  chosen, 
without  the  knowledge  or  consent  of  the  surety,  by  the  principal  and  the  guard* 
ian  who  succeeded  him.     Commonwealth  v.  Simonton,  310. 

TENDER. 

In  an  action  on  an  agreement  for  the  sale  and  purchase  of  land,  to  recover  the 
purchase  money,  the  plaintiff  can  not  recover,  unless  he  has,  previously  to  the 
commencement  of  his  action,  tendered  a  sufficient  conveyance  of  the  land. 
Withers  v.  Atkinson,  236. 

TERRE-TENANT. 
DEFENCE. 

TREASURER'S  SALE. 

COMMISSIONER'S  SALE,  1. 
UNSEATED  LANDS,  1. 

1 .  The  omission  of  the  treasurer  to  file  the  bond,  given  for  the  surplus  purchase 
money  of  a  tract  of  land  sold  for  taxes,  does  not  vitiate  the  purchaser's  title. 
White  v.  Willard,  42. 

2.  A  tract  of  land  originally  having  in  it  four  hundred  acres,  one  hundred  were 
divided  off  and  sold,  and  the  purchaser  occupied  it ;  the  residue  of  the  tract  as- 
sessed in  the  name  of  the  original  warrantee  is  the  subject  of  sale  for  taxes,  as 
unseated.     Campbell  v.  Wilson,  503. 

3.  A  treasurer's  sale  for  taxes  of  part  of  a  tract  of  land,  and  a  conveyance  of 
that  part,  designating  the  quantity,  but  not  the  locality,  is  good  ;  and  an  unre- 
stricted choice  of  locality  to  the  purchaser,  is  a  necessary  incident  of  the  sale,  and 
a  consequence  of  a  reasonable  interpretation  of  the  statute .    Coxe  v.  Blanden,  533. 

TREASURER'S  WARRANT. 
LIEN,  5. 

TRIAL. 

Where  a  judgment  opened  to  let  a  defendant  into  a  defence  is  not  brought 
to  trial  within  a  reasonable  time,  and  the  defendant's  real  estate  has  been  sold 
by  the  sheriff,  and  the  money  is  in  court  for  distribution,  the  court  ought  to  per- 
mit the  judgment  creditor,  who  would  be  next  entitled  to  the  money,  to  appear 
as  defendant,  and  rule  the  plaintiff  to  a  trial.  Pricker's  Appeal,  393. 

TRUST. 

EVIDENCE,  6.  " 

LIMITATION,  3. 


INDEX.  561 

TRUST. 

1.  If  a  testator  be  induced  to  make  a  devise,  by  the  promise  of  the  devisee, 
that  it  should  be  applied  to  the  benefit  of  another,  a  trust  is  thereby  created, 
which  may  be  established  by  parol  evidence  ;  and  this  is  not  contrary  to  the 
statute  of  wills.     Hoge  v.  Hoge,  163. 

2.  A  trust  in  favour  of  an  unincorporated  religious  society  is  an  available  one, 
if  the  society  be  constituted  entirely  of  members  resident  within  the  state. 
Methodist  Church  v.  Remington,  218. 

The  statutes  of  mortmain  have  been  extended  to  this  state  only  so  far  as  they 
prohibit  dedications  of  property  to  superstitious  uses,  and  grants  to  corporations 
without  a  statutory  license.  Ibid. 

The  act  of  1730,  entitled  "  an  act  for  the  enabling  of  religious  societies  of  pro- 
testants  within  this  province  to  purchase  lands  for  burying  grounds,  churches," 
&c.,  being  an  affirmative  statute,  cannot  be  construed  to  prohibit  a  trust  which 
derives  its  support  from  the  common  law.  Ibid. 

It  is  the  equitable  powers  of  a  court  which  can  compel  the  execution  of  a 
trust  which  has  not  the  benefit  of  any  principle  of  legislative  recognition,  but 
those  equitable  powers  will  not  be  exercised  to  enforce  a  trust  which  is  against 
the  policy  of  the  state,  as  expressed  by  the  legislature  in  its  acts  in  parallel  cases. 
Ibid. 

The  deed  in  this  case  to  individuals  "  for  the  use  of  the  members  of  the  Meth- 
odist Episcopal  Church  in  the  United  States  of  America,"  &c.,h6ld,  not  to  create 
an  available  trust.  Ibid. 

3.  The  parol  gift  of  a  debt  to  another,  to  be  recovered  and  held  in  trust  for  an 
illegitimate  child,  may  be  countermanded  at  any  time  before  the  trust  is  executed. 
And  in  an  action  by  the  cestui  que  trust  against  the  trustee,  to  recover  the  money, 
a  release  by  the  donor  to  the  trustee,  executed  after  suit  brought,  may  be  given 
in  evidence.    Lyon  v.  Mar  clay }  271. 

4.  In  ejectment,  a  third  person  cannot  object  to  the  title  of  the  plaintiff,  founded 
on  a  conveyance  of  the  legal  estate  by  a  trustee,  on  the  ground  of  its  having 
been  an  abuse  of  the  trust.     Coxe  v.  Blanden,  533. 

TRUSTEE. 

ADMINISTRATORS,  2. 

When  the  same  individual  is  an  executor  of  a  will  and  also  the  trustee  of  a 
fund  arising  out  of  the  estate  of  the  testator,  and  receives  money  in  contempla- 
tion of  law  as  trustee,  it  is  demandable  from  him  in  no  other  character.  Jacobs 
v.  Bull,  370. 

UNSEATED  LANDS. 

TREASURER'S  SALE,  1,  2. 

A  tract  of  land  with  a  man  and  his  family  residing  upon  it,  is  not  unseated  as 
to  that  part  which  is  not  cleared,  whether  the  settler  has  entered  with  or  without 
title;  and  can  not  be  sold  for  taxes.  Campbell  v.  Wilson,  503. 

A  tract  of  land,  upon  which  there  is  an  actual  residence,  can  not  be  sold  for 
taxes,  whether  the  resident  has  property  sufficient  to  pay  the  taxes  or  not.  Ibid. 

VERDICT. 

STATEMENT,  1. 

A  verdict  is  not  vitiated  by  the  finding  of  superfluous  matter  by  a  jury.  It  is 
often  proper  and  necessary  that  a  jury  should  state  in  their  verdict  the  grounds 
on  which  their  verdict  is  founded.  Fisher  v.  Kean,  259. 

3  v 


562  INDEX. 

WARRANT. 

EVIDENCE,  2. 
EJECTMENT,  1. 
SETTLEMENT,  1. 

WIDOW. 

INTESTATE, 1. 

The  lien  on  land  which  a  widow  has  for  her  interest,  by  the  intestate  laws,  is 
not  devested  by  a  sheriiTs  sale  of  that  land,  upon  a  judgment  whose  lien  was 
subsequently  obtained.  Fisher  v.  Kean,  259. 

WILL. 

EVIDENCE,  6. 

DEVISE,  1,2. 

In  Pennsylvania,  it  is  not  necessary  to  the  validity  of  a  devise  that  the  will 
should  be  sealed;  nor  that  it  should  be  proved  by  subscribing  witnesses.  Rohrer 
v.  Stehman,  442. 

A  memorandum,  taken  in  writing,  from  the  mouth  of  a  testator,  for  the  purpose 
of  drawing  from  it  a  formal  will,  and  read  over  to  him  and  approved,  may  be 
proved  as  a  will.  Ibid. 

WITNESS. 

PARTITION,  2. 

1.  A  defendant  in  an  execution,  the  proceeds  of  whose  property  is  in  court  for 
appropriation,  may  be  examined  as  a  witness  on  the  trial  of  a  feigned  issue,  to 
ascertain  facts  in  relation  to  it ;  his  interest,  as  regards  the  plaintiff  and  the  de- 
fendant in  such  issue,  being  equal.     Stewart  v.  Stacker,  135. 

2.  When  a  judgment  has  been  opened  at  the  instance  of  creditors,  upon  an 
allegation  that  it  was  fraudulent  as  against  them,  the  defendant  in  such  judgment 
is  a  competent  witness  for  the  creditors  to  establish  the  fraud.     Sommcr  v.  Som- 
mer,  303. 


END  OF  VOL.  I. 


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Philadelphia,  JVorember  20,  1834. 


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